Can You Hear Me Now?

Just because you can record someone in a phone conversation doesn’t mean you should.

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With the proliferation of recording devices, both video and audio, I occasionally have a client who asks that I listen to a recording — typically left on voicemail — of the other party being foul or abusive, or even threatening.  The more emotional ones come in family law cases where divorce or custody is an issue.  These are rarely directed at the children in Alec Baldwin-like tirades, but still can be pretty bitter.  Sometimes the question turns to whether the client should record another person’s phone calls: ex-spouse, neighbor, stalker, telemarketer, etc.

But what can we record exactly? Partly, it depends where you are.  I read recently about Anthony Graber, a staff sergeant in the Maryland National Guard might get jail time for recording his traffic stop by a state trooper.  Under wiretapping laws, which vary by state, it can be illegal to record audio of another person’s voice without his knowledge.  Some states require that both parties have knowledge they are being recorded, and others, like Indiana, require only one party to have knowledge.  If Maryland is a two-party consent state, then recording a private conversation without dual consent may violate state law.  However, commentators rightly point out that the weak part of the case will be in construing the conversation between he and the officer as “private.” Should officers have a monopoly on dashboard cameras?  [Insert appropriate Orwellian reference here.]  A cottage industry seems to have grown for civilian recording devices as well.  One wonders whether the charge would have come at all had Graber not posted the video on YouTube. Generally, retaliatory prosecutions are a good way for a prosecutor to lose an election.  An interesting case, but the lesson is to know the laws in your jurisdiction.

In Indiana, it is a C Felony (I.C. 35-33.5-5-5) to intercept an electronic communication without the consent of either party.  If Husband records Wife talking to Husband, then there is no violation in Indiana, because Husband has consented to his own recording.  But if Husband records Wife talking to Boyfriend, who has not consented, a crime may have occurred.  Somewhat counterintuitively, the crime of Invasion of Privacy (I.C. 35-46-1-15.1), deals almost exclusively with the violation of a protective order, also known as a no contact order, and not with recording someone’s voice or image. However, civil lawsuits for the tort of invasion of privacy can encompass wrongly using someone’s image.

There are situations where perhaps recording another person during your conversation is appropriate, particularly to prove stalking, intimidation, harassment, or other personal protection measures.  But just because you can doesn’t mean you should. In 1 Corinthians 6:12, Paul says that “[a]ll things are lawful for me, but not all things are profitable.”  If you want to record another person to demonstrate a crime committed against you, you should contact the police first.  If you want to show that your ex-spouse or neighbor is a bad person, it may make things worse by tearing down any trust that could be built up to improve that relationship.  Ask yourself: if that person recorded you would you have open and honest talks in the future?  But even if your concerns are only with the evidence you can put in front of a judge, you might be disappointed at how ineffective a recording can be.  After all, if you’re already having a dispute in court, the judge usually doesn’t need more proof that the two of you aren’t getting along.  So consider it very carefully, otherwise, recording someone in a phone or other conversation may burn a bridge for nothing.

Author: T. Andrew Perkins

I have practiced law in Rochester since 2001. My practice is varied: appellate law; general civil litigation; real estate; family law; and probate and estate planning. I am an active member in the Peru Grace Brethren Church. I have also served on the boards of various community organizations, including: Fulton County Community Foundation, Fulton County Leadership Academy, Fulton County United Way, Rochester Kiwanis Club, Fulton County Council on Aging, and the Fulton County Chamber of Commerce. You can reach my office from the Links page.

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