ARIZONIA UPDATE
AZ is a one party state, ARS 13-3005.A(1)(2), AND also permits a telephone "subscriber" (the person who orders the phone service and whose name is on the bill) to tape (intercept) calls without being a party to the conversation and without requiring any notification to any parties to the call, ARS 13-3012(5)(c).
I also seem to recall a case law decision from many years ago (the 1920's or the 1950's) that went to the Supreme Court andt affirmed that the federal law does not superceed state authority/statutes unless the call or the tap crosses state lines -- that is why each state went ahead and established their own guideline/statute.
"Education is what you get from reading the small print, Experience is what you get from not reading it"
Submitted By:
Jeff Boas, Executive Director
Affiliated Banking & Business Consultants
AZ PI License 9107002
P.O. Box 64988, Tucson, AZ 85728
email:
jeffpi@aol.com
(
http://members.aol.com/jeffpi/jeffpi.html)
1. ILLINOIS
Illinois is, by _statute_ a two party state. However, case law from both the IL Supreme Court and various Illinois appellate courts have declared Illinois a one-party state in the case of private citizens (businesses and plain folks - NOT law enforcement). The reigning concensus is that one-party consenual recording is merely "enhanced note-taking" and since some folks have total recall without recording, how can the other party have any expectation of privacy to a conversation held with another person.
Illinois requires prior consent of all participants to monitor or record a
phone conversation. Ill. Rev. Stat. Ch. 38, Sec. 14-2. There is no specific
business telephone exception, but in general courts have found extension
telephones do not constitute eavesdropping devices. Criminal penalties for
unlawful eavesdropping include up to three years' imprisonment or $10,000 in
fines and the civil remedy provides for recovery of actual and punitive
damages.
Here in the enlightened state of Illinois it IS ILLEGAL to monitor cordless phones.
2. WISCONSIN
Wisconsin is currently a one-party state though recent attempts in the legislature there have attempted, unsuccessfully thus far, to change it to two-party. Even so, any evidence gathered by a one-party consensual recording is inadmissible except in murder or drug cases so I am told. Perhaps someone from Wisconsin can further illuminate this situation.
garyshamus@admin.itol.com (Gary Wise)
Wisconsin is a one party state however there is a problem with just one
party consent. The Wisconsin Stats 885.365 Recorded telephone conversation
(1) states "Evidence obtained as the result of the use of voice recording
equipment for recording of telephone conversations, by way of interception
of a communication or in any other nammmer, shall be totally inadmissible in
the court of this state in civil actions, except as provided by 968.28 to
968.37." Exceptions are it the party is informed before the recording is
informed at the time that the conversation is being recorded and that any
evidence thereby obtained may be used in a court of law or such recording is
made throught a recorder connector proved by the telecommunicatons utility
as defined in WI Stats 968.28 - 968.37 (which is the stat for court ordered
wiretaps) which automatically produces a distinctive recorder tone that is
repeated at intervals of approximately 15 seconds". Fire department or law
enforcement agency are exempt as are court ordered wire tapes.
Also a recording on the phone made from a out of state call or made to an
out of state party, has to have the party informed of the recording and his
consent or the tone on line, every 15 seconds, or a consent in writing
before the recording is started.
Needless to say this does not allow a person not a party to the conversation
to record any part of the conversation without the parties to the
conversation being informed the third party is recording the conversation.
bhrodey@starnetinc.com
My name is Bob Hrodey and I am a licensed investigator/agency head in both IL and WI.
In the message that Ralph Thomas sent you he indicated that there is a discrepancy
between, or perhaps disagreement/confusion is a better word, a few of us as to what the
law on recording is in WI.
I have been told that "one party consensual recording", i.e. where I tape record a
telephone conversation OF WHICH I AM A PARTY with an individual such as yourself who is
not aware the conversation we are having is being record is legal, however the resultant
tape may be inadmissible as evidence in court unless it is a serious felony (I think
either kidnapping or murder, maybe drug conspiracy, etc.).
Someone else has said that this is not the case and that unless BOTH parties are aware
of the tape-recording, it is a clear violation of the law and furthermore the detective
involved is subject to revocation of his license.
If you know what the law is on this (case law as well as statutory) would you please let
us know? I'm trying to get my hands on a copy of the WI statute as I have a case
pending in WI that will potentially involve surreptitious recording of conversations
which I may have with other subjects. Obviously, if it is illegal in WI I won't be
using the technique.
Needless to say, the other voices who claim to know the answer haven't come forth with
any statutory authority. Nor, for that matter, has my source in WI whom I've asked to
send me a copy. OTOH, I did discuss the matter with the client, a WI attorney, and he
said it could legally be done although he questioned whether the tapes themselves could
be introduced as evidence or would merely be beneficial as "enhanced notes."
Would really appreciate any input you can provide. Ralph started compiling a list of
the law on this topic in all 50 states and he's got about 45-46 of them on file. This
is just a point of contention we need to clear up to make the list as accurate as we
can.
3. CALIFORNIA
< tfriend@best.com (Timothy Friend)>
Although CA is a 2 party state, you can also record a conversation if you
include that annoying beep on the recorder and for the parties to hear.
This information was included with my telephone bill.
<73141.2400@CompuServe.COM> (Warren Levicoff)
California prohibits telephone monitoring or recording, including the use of information obtained through interception unless all parties to the
conversation consent. Cal. Penal Code Secs. 631, 632. There is no statutory business telephone exception and the relevant case law all but excludes this possibility. California courts have recognized "implied" consent as being sufficient to satisfy the statute where one party has expressly agreed to the taping and the other continues the conversation after having been informed that the call is being recorded. Violation is punishable by a fine of up to $2,500, imprisonment for not more than one year, or both. A civil plaintiff may recover the greater of $3,000 or three times the amount of any actual damages sustained.
4. WASHINGTON
Washington is a two party State. Some of us work around that by going to the indian reservations or any federally owned property to make the call--Federal law is a one party consent.
<73141.2400@CompuServe.COM> (Warren Levicoff) Washington requires the consent of all parties. Wash. Rev. Code Ann. Sec.
9.73.030 (Supp. 1979).
5. INDIANA
In the State of Indiana it is one party authorization.
As far as what is addmissable in court it is still being tested
per each case individually by the prosecutors office in the county
in which the investigation or case was done.
6. NEW YORK
New York is a one party state, however some courts will not admit an
interview with a witness to an event if they were not informed they were
being recorded. Apparently the judge may use his descretion.
William Sullivan
New York is a one party state, Per NYS Penal Law, Sec. 250.00(1)
7. PENNSYLVANIA:
PA is two party with the following exception: Any individual may record a phone conversation without the other party's consent if:
1) The non-consenting party threatens the life or physical well-being of the consenting party, or any member of his/her family.
2) The non-consenting party commits any criminal action (the statute specifically uses the example of telling the consenting party that they have marijuana they want the consenter to buy, but does state ANY criminal act).
8. GEORGA
BTW, I was assigned (as a local law enforcement officer) to a joint federal/state/local DEA drug task force. When we knew we would be prosecuting a case under state law (Georgia), Georgia laws regarding eavesdropping applied, no matter where we called, because the call originated in, and the case would be prosecuted in, a one-party state.Just a thought (of which I've had several....)
Bob GSES Investigations, Inc.
9. CONNECTICUT
Connecticut joined the ranks of two party consent about 3 years ago. The State Police here is quite diligent in enforcing the law. Ironic, since they were the ones responsible for the law going inti effect by illegaly recording the telephone calls of prisoners at the individual barrack when arrested.
10. MARYLAND <73141.2400@CompuServe.COM> (Warren Levicoff)
Maryland is a two-party-consent state. Md. Cts. & Jud. Proc.Code Ann. Sec. 10-402 (1980).
11. MASSACHUETTS <73141.2400@CompuServe.COM> (Warren Levicoff)
Massachusetts requires consent of al parties unless another exception applies. Mass. Gen. Laws Ann. ch. 272, Sec. 99. Telephone equipment which is furnished to a phone company subscriber and used in the ordinary course of business is excluded from the definition of unlawful interception devices. Id. at 99(B)(3). Office intercommunication systems used in the ordinary course of business are similarly exempt. Id. at 99(D)(1)(b). The criminal penalty is a fine of up to $10,000, imprisonment for up to five years, or both. In civil litigation, an injured party may recover actual and punitive damages as well as costs and fees. It is a separate violation to divulge or use the information garnered through unlawful interception and an additional penalty of up to two years in prison or $5,000 may be imposed on this count.
12. MONTANA <73141.2400@CompuServe.COM> (Warren Levicoff)
Montana is a two-party consent state. Mont. Rev. Codes Secs. 94-8-114
(1973).
13. NEW HAMPSHIRE <73141.2400@CompuServe.COM> (Warren Levicoff)
New Hampshire requires the consent of all parties. N.H. Rev. Stat. Ann.
Secs. 570 A:2 (Replacement 1974).
14. OREGON <73141.2400@CompuServe.COM> (Warren Levicoff)
Oregon requires the consent of all parties. Or. Rev. Stat. Secs. 165.540
(Replacement 1979).
15. PENNSYLVANIA <73141.2400@CompuServe.COM> (Warren Levicoff)
Pennsylvania requires the consent of all parties. 18 Pa. Cons. Stat. Ann. Sec. 5704(4), but surreptitious use of extensions for these purposes constitutes interception within the wiretapping statute. Felony penalties may be imposed for violation of the Pennsylvania statute.
THE FEDERAL LAW
READ THE FEDERAL LAW
Title 18, Part 1, Chapter 119 USC, entitled Wire and Electronic
Commuications Interceptions found at the following web sites
CORNELL UNIVERSITY
http://www.law.cornell/edu
SEAMLESS WEB PAGES
http://www.Seamless.com/rcl/privacy.html
The federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510 et seq., prohibits the willful interception of telephone communication by means of any electronic, mechanical, or other device without an applicable exemption. There are two principal exceptions:
Federal Exceptions
Consent: In the absence of more restrictive state law, it is permissible to intercept and record a telephone conversation if one or both of the parties to the call consents. Consent means authorization by only one participant in the call; single-party consent is provided for by specific statutory exemption under federal law. 18 U.S.C. Sec. 2511(2)(d).
"Business telephone" exception
The "business telephone" exception, which generally allows monitoring of
calls and taping over an extension phone which is both provided to a subscriber in the ordinary course of a telephone company's business and is being used by that subscriber in the ordinary course of its business. This provision generally permits businesses to monitor the conversations of their employees, including personal conversations.
Penalties: The federal statutes provide criminal penalties for unlawful interception of telephone conversations, including up to five years' imprisonment or a maximum of $10,000 in fines. They also allow for civil remedies, by which private parties are entitled to recover actual and punitive damages, together with fees and costs.
RECORDING AND LAWYERS: <73141.2400@CompuServe.COM>
(Warren Levicoff)
Under ABA Formal Opinion 337 (August 10, 1974), and certain state and local opinions, it may be unethical for an attorney to make an undisclosed recording of other persons.
RECORDING AND FGCC RULES <73141.2400@CompuServe.COM>
(Warren Levicoff)
The FCC Regulations require telephone carriers to file tariffs with the Commission to the effect that: (1) adequate notice be given to all parties that their conversation is being recorded; (2) that such notice be given by the use of an automatic tone warning device; and (3) that the tone warning device be furnished, installed and maintained by the telephone company along specified technical guidelines. 11 FCC 1033, 1050, 12 FCC 1005, 1008 (1947). These regulations are directed toward the telephone carriers, and do not make recording a criminal offense. However, a person who fails to use the "beep" tone as required may have his telephone service terminated.
EVIDENTIARY ISSUES <73141.2400@CompuServe.COM> (Warren Levicoff) Individuals and businesses that make surreptitious recordings often do so
with the expectation that the recordings will be useful as evidence. Such
recordings are subject to significant barriers to use as evidence. First, if
made in violation of either federal or state law, the recordings will almost certainly be inadmissi- ble. Second, even if lawfully recorded, the tapes will be exempt from the hearsay rule and will not, in most jurisdictions, be usable for impeachment. Anyone contemplating an evidentiary use of surreptitious recordings should consult with an attorney prior to making the recording.
EXTENSIVE REMARKS
REMARKS OREGON
In Oregon there has been case law regarding calling into a 2 party consent state. Basically if you are working on a case that is being tried in Oregon and you called into a state with two party consent since the case is being tried in Oregon (1 party state)the jurisdictional state prevails and the
tape is admitted into evidence.
Phil: Agrue & Associates Investigations Inc.,2061 NW Hoyt St. * Suite K * Portland OR 97209,Voice * 503-246-7561 * Fax * 503-228-2915
Home Page:http://www.investigations.com/~pagrue
GRA Associates, Inc. wrote:
(Jim Wingate)
An open question to the list:
I have yet to get a definitive answer on the question that follows. If you have experience or ideas towards its resolution, please post a response: With regards to recording convsersations: If I am calling (interstate, long distance) from a 1-party state (e.g., Texas) to a 2-party state (e.g.,
California), is it legal to record the conversation? Would this entail ICCor FCC regulations?As I have heard from a few other PIs; ask a different attorney, get a different answer.
Bud Andrews. Action Valley Investigations, CA PI#18429
Serving the information needs of Southern California
Vox: 805-735-5990, 800-201-9088, Fax: 805-733-4094
To All,
In April 1992 I wrote a letter to the FBI office in Cleveland, Ohio and asked them specifically what the federal laws were regarding recordings. The Principal Legal Advisor responded by referring me to the U.S. Code sections 2510-2521 of Title 18, specifically section 2511 (2) (d). (I have not checked to see if the law has been changed since 1992). Section 2511 (2) (d) states as follows, "It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such a person is a party to the communications or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State". If I were calling from a one party state to a two party state I would think that the law would apply where the phone call originated from, that being the one party state. I have not researched this yet. Just putting my 2 cents in.
Regarding your question of dominating state law, it doesn't matter where the call is placed. From or to two party consent is still two party consent. This comes from a source in the FBI. Additionally, it then becomes a federal crime. Same exceptions as the PA law regarding recordings I sent you earlier.
Matt Forman
NIS Investigative Services
Shawn Goudge, BA(Hons) Law Paralegal Services in: GOUDGE LEGAL CONSULTING -Summary Offences,PO Box 26123, 72 Robertson Rd -Small Claims Nepean, Ontario, Canada -Landlord Tenant Relations K2H 9R6 -Regulatory Law, Ph (613) 786-6384 -Immigration Law
E-Mail: sgoudge@cyberus.ca -Process Serving
Dear Stephanie, Mr. Thomas, and others:
That is a very interesting question, one that I hope ALL P.I.'s will give a whole lot of thought to before attempting to test their respective laws. Recording (or wiretapping) is an area that we all have to be very concerned about, as breaking the law can wind one in prison real fast, as well as having his/her license revoked if the infraction occurs in their respective home state, not to mention the aggravation of ourselves being the defendant, instead of the witness, in court.
I am not an attorney; however, I am going to "take the plunge" and address this matter head on, as I THINK I know the answer to your question and I'm afraid my fellow investigator friends need to be extremely careful with this matter.
My understanding regarding interstate vs. intrastate laws is the same as yours mentioned below. In all cases that I am familiar with, the stricter law ALWAYS applies, that being a stricter state statute takes prescedence over a more lax federal law. The feds may not prosecute you, but your state will, so what's the difference? Either way, you still land up in jail and have your license revoked! In addition, if you are making a recording with the purpose of admitting it into court as evidence, your clients will not be too thankful when they see all the trouble you've caused them and yourself and your evidence is thrown out.
As to recording interstate calls, try using the "K.I.S.S./JDDI" principle (keep it simple/just don't do it)...
Let's try the following example: You place a recorded call from Iowa to Maryland. Iowa is a ONE party state and Maryland is a TWO (actually, ALL, by Maryland state statute) party state. Therefore, the person originating the call in Iowa (yourself), is being recorded as well as the target person in Maryland being surreptitiously recorded. No Iowa laws were broken (you in Iowa are aware of the recording). No federal laws were broken (you in Iowa are aware of the recording). But, what about Maryland?
ANSWER: If Maryland has a statute (and it does) requiring ALL parties to be aware of the telephone recording, and you (in Iowa) are surreptitiously recording a person in Maryland, YOU HAVE IN FACT BROKEN A MARYLAND STATE LAW, AS THIS IS ILLEGAL IN MARYLAND. The person in Maryland is being recorded without his/her knowledge or consent, which by law is illegal in the state of Maryland.
BOTTOM LINE: You have the fed's blessing, you have Iowa's blessing (therefore, your Iowa license is safe), but if you ever travel into Maryland the cops can - and will - throw you in prison real fast!!! As long as you stay in Iowa, you're fine - just don't visit Maryland...
WORSE CASE SCENARIO: you committed a criminal offense in Maryland (wiretapping) and you are from out of state (Iowa). The Maryland officials notify the feds, so now the feds want you since you've committed a federal offense (NOT wiretapping), by committing a state offense (Maryland) from across state lines. Gets complicated, doesn't it!!! Is it really worth it?
I am pretty confident that I am correct on this matter, Stephanie. However, my rule of thumb in investigations has always been that if you THINK you may possibly be breaking a law, you probably are!!! Therefore, DON'T DO IT, unless you are absolutely sure you are within the law of ALL states you are conducting business in, even if by phone. No client can ever pay you enough money to knowing violate a law, when it is supposedly our purpose to stay within the law. Agreed? Besides, you may end up winning your personal case, but is the time and expense in defending yourself really worth it?
You may be able to tell your story on "Oprah", but your professional credibility is shot.
Hope this helps, and that this does not create a new flood of e-mail...
Sincerely,
James Brewer,President
Angel & Brewer Limited,PO Box 2434
La Grange, IL 60525 USA (Chicago metro area)
Phone: 708-579-1776, Fax: 708-354-2933
E-mail: AngelBrewer@msn.com
Web site: http://www.pihome.com/angelbrewer
CAN ANYONE ANSWER THIS QUESTION CONCERNING ONE PARTY/TWO PARTY TELEPHONE RECORDINGS?
You might also want to note the rules for INTERSTATE calls. My understanding is that A) federal law allows one-party consent recordings and also that B) state law that is stricter predominates..... Does the state law where the call ORIGINATES dominate? Does it matter? If I call from California to Texas, for example, am I held liable....
-stephanie
Steph:
I don't know-I'm not a lawyer-have asked some and gotten difference answers but will (frw) to group and see what we get back.
Ralph Thomas
National Association Of Investigative Specialists
Thomas Investigtive Publilcations, Inc.
http://www.pimall.com/nais/home.html
P 512-719-3595 F 512-719-3594
Best bet- instead of recording, do something that is permissible and admissible in court: have a third party (of your choosing) listen in on the conversation and write it all down. This can then be turned in to a "witness statement". It helps to have the third party do the phone dialing, too, and include this fact in the statement.
John Grogan/Los Angeles (818) 883-6969 (we do latent fingerprinting and other assignments for other PIs throughout California)
Thanks. But isn't that "eavesdropping"? Or is eavesdropping only regulated when it's technologically enhanced or violating a reasonable expectation of privacy? In other words, when one is talking on the phone should one assume there might be an extension? .....
just curious...
-stephanie
Boy now that's a can of worms! I belief that attorneys could have a field day with that question! Although personally I belief that the spirt of the law when it was written was applying to electronic means of recording conversations, I have this feeling you'd have to go to the US Supreme Court to get that one answered in any finalization.
Ralph Thomas
National Association Of Investigative Specialists
Thomas Investigtive Publilcations, Inc.
http://www.pimall.com/nais/home.html
P 512-719-3595 F 512-719-3594
This to may be illegal, depending on the state you live in. It is still the interception of a oral communication with out the permission or concent of all parties. Just because it is not being recorded on tape does not mean it it legal. Here in PA, it is what is call ALL party concent. Although I may not agree with the law, it still must be obeyed. Hopefully someday it will be change to one party concent. Well, enough for now. Good Luck to all.
Roger J. Willard, P.I., 3304 Main Street, Conestoga, PA 17516
717-872-7561 rwillard@success.net,Author, MISSING PERSONS, USA - Paladin Press, Professional Speaker - Check out our Web Site
www.igateway.com/mall/special/private
<74777.3001@compuserve.com (Blackmoor)>
>>Section 2511 (2) (d) states as follows, "It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such a person is a party to the communications or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State".
Now THIS makes sense to me. It's reassurring to run across a reasonable law once in a while.
Brandon Blackmoor, Harry Browne for President
Black Gate Publishing <http://www.HarryBrowne96.org>
<http://users.aol.com/blackgate>
Please take note that while we are discussing one party-two party recording, there is a difference between wiretapping and recording conversations. I am trying to find the law on this right now and will post it as soon as I have it. Most states recognize the recording of phone calls by businesses as part of the business operation. A case was tried on this as wiretapping and it went all the way to the S.Court. The court ruled that wiretapping was the surrepticious (gad- what spelling) recording of a phone call (simply put) for possible illegal purposes, etc., while the recording of a phone call by a business was a normal course of events in this day of rapid communications, etc. We have recorders on our incoming business lines and record all conversations as a normal course of events. We then put the tape (we use microtapes) with the client file. If the party does not become a client, we erase the tape and reuse it. It has made keeping up with client information a whole lot simpler.
Lee Griggs
After some of the discussion with respect to monitoring telephone conversations, I would suggest all read 18 USC Sec. 2511, Part 1, Chapter 119. This document (best to use Gopher) is a must for all who are involved in any covert assignments where monitoring is employed! Mac Gray, Gray & Associates www.citynet.net/personal/sharkpi/
graypi@main.citynet.net