In this day and age when almost everyone is walking around with an easy to use and easy to conceal recording device backed up with hefty amounts of digital memory (AKA a cellphone), I frequently get the question whether or not it is legal to secretly record someone else either during a phone call or a face-to-face conversation. In earlier days – not that long ago actually – such recordings required specialty equipment.
If you were an ordinary civilian without access to cutting edge surveillance equipment the options were quite limited. Recording a phone call meant using a clunky device that employed audio cassettes wired to a phone’s handset. Secretly recording a face-to-face conversation meant hiding a “micro” cassette recorder (that still managed to be quite large) somewhere that was out of sight yet could still pick up the noise of the conversation.
But with the advent of the cell phone, such secret recordings are quite easier to make. However, easier does not necessarily mean allowable or legal. In the state of Texas, as long as one party to the conversation is aware of the recording, it is perfectly legal to record a phone call or a face-to-face discussion. No other party has to be made aware of the recording. So for example, in Texas, if Jack and Jill are on the phone together and Jack wishes to record the call, he can do so legally and never has to notify Jill that she is being or might be recorded. This same rule applies if Jack and Jill are having a face-to-face meeting either in a private or a public location.
Let me please reiterate that I have described what is allowable in Texas. In some other states what Jack did (recording a call or in-person conversation) without Jill’s consent or knowledge would be considered a crime. The rules absolutely vary from jurisdiction to jurisdiction. Conduct that is perfectly allowable in one state could be civilly or criminally sanctionable somewhere else.
I want to also highlight an important aspect of the Texas rule regarding secret recordings: that at least one party to the conversation must be aware of the recording. So if Jack and Jill are having a phone call together and Sam decides to secretly record the call, then Sam is committing a crime even in Texas. Again, at least one party to the secretly recorded conversation must be aware of the recording for this act to be legal.
What I’ve described above applies to civilians; the police operate under different rules. Law enforcement investigators can certainly tap phones or bug locations to listen in and record conversations but only after being granted that power via a properly obtained warrant issued by a neutral and detached judge upon a showing of necessity.
As with all things, it pays to know the rules and proceed accordingly.