Recording a Spouse’s Conversations

This depends on the circumstances. State and federal laws differ about whether you can secretly record a phone call or a conversation. Determining which jurisdiction’s law controls cases where the parties are in different states can be difficult. It is best to use the most rigorous state’s laws when in doubt to prevent a crime you never thought you were committing.

Federal Law

Federal law only requires one party to consent to the recording. This means that conversations can be recorded as long as one party consents. Under this rule, you can record a phone call or conversation so long as

• you are a party to the conversation, or
• at least one party consents and has full knowledge that the communication will be recorded

If you are not part of the conversation and have no consent to the recording, you will have violated the federal Electronic Communications Privacy Act (ECPA). The ECPA updated the Federal Wiretap Act of 1968, which addressed the interception of conversations using telephone lines but did not apply to the interception of computers and other digital and electronic communications. The ECPA aims to protect communication privacy, whether the conversations are in person, over the phone, or electronic.

Under the ECPA, it is illegal to intentionally or purposefully listen in, disclose, or use the contents of any wire, oral, or electronic communication. The ECPA provides criminal and civil penalties for violations. A court can award damages to the eavesdropping victim, and each day the violation continues gives rise to a higher amount of damages. A court may impose additional punitive damages if the violation is especially malicious.

Finally, a court may impose a term of imprisonment not to exceed five years for violating the ECPA.

State Laws

In addition to federal law, each state maintains its own criminal penalties for secretly recording without consent. What constitutes “consent” in a given jurisdiction can vary in terms of whether it must be expressed or can be presumed based on the circumstances.

Most states have enacted laws similar to the federal statute, meaning they generally require one-party consent. These include:

• Alabama
• Alaska
• Arizona
• Arkansas
• Colorado
• The District of Columbia
• Georgia
• Hawaii
• Idaho
• Indiana
• Iowa
• Kansas
• Kentucky
• Louisiana
• Maine
• Minnesota
• Mississippi
• Missouri
• Nebraska
• New Jersey
• New Mexico
• New York
• North Carolina
• North Dakota
• Ohio
• Oklahoma
• Rhode Island
• South Carolina
• South Dakota
• Tennessee
• Texas
• Utah
• Virginia
• West Virginia
• Wisconsin
• Wyoming

On the other hand, these states require all parties to give that consent:

• California
• Connecticut
• Delaware
• Florida
• Illinois
• Maryland
• Massachusetts
• Michigan
• Montana
• Nevada
• New Hampshire
• Oregon
• Pennsylvania
• Vermont
• Washington

Note that consent requirements only apply when the parties have a reasonable expectation of privacy (e.g., if the speakers are in a public place – a restaurant, a park, a bar – consent is not required).

Is It a Crime to Secretly Record a Spouse’s Conversation?

In the long run, the same laws apply in the same way to a spouse’s conversation as to anyone else’s. In most states you can record as long as the other person (not your spouse) gives consent. In reality, if the conversation is between a spouse and a third party, it is very unlikely that any recording of this conversation will be legal.

This is because it is unlikely that either party, let alone both, has agreed to have the conversation recorded. According to federal law and most states, there is no legal exception to these laws when one spouse is recording the other.

Can I Record My Own Conversations with My Spouse?

That depends on which state(s) you and your spouse live in. In a one-party consent state, you can record your conversations with anyone since you have given your consent. In two-party states, your spouse would have to agree to be recorded.

Applying the Law to the Facts

Courts will generally consider how the law applies to the facts. For instance:

• One spouse brags at a party about hiding some jointly held property from their spouse during divorce proceedings. As this communication is made in public, it is not considered to be confidential, and therefore it would not violate any privacy laws to record the conversation without their consent.
• If someone intercepts and records a telephone conversation where the parties discuss their involvement in a crime and then gives that information to a newspaper reporter, the wiretapper can be liable for violating the law. This might seem strange because the person was attempting to prevent a crime, but the conduct is nevertheless illegal.
• Law enforcement officials can legally record communications when one party consents to them. So, if someone is suspected of illegal activities and a government informant consents, agents can listen to and record conversations between the criminal and the informant.
• In private and without any third parties present, a person suffering from addiction tells about their drug problem to a friend. Here, it is reasonable to expect this communication to be private, and any recording without consent would be considered illegal.
• A person records police officers or other public officials. This is legal because citizens have a constitutional right to openly record the activities of police and other officials in public in the interest of public safety and full transparency. However, people cannot interfere with those activities or violate other generally applicable laws.
• Telephone and mobile phone service providers are allowed to monitor phone calls so long as they have a valid court order in which to do so. Providers may also do so when they need to provide a customer with service or inspect the equipment they have provided to the customer. Providers are also allowed to wiretap to protect their rights or property. An example of this would be if someone is using their network without paying for the service
• You leave a recording device in a room after you have gone to record a conversation you are not part of. Unless one of the other parties gave consent, you have violated the law

Do I Need an Attorney for Recording a Spouse’s Conversation?

If you are being accused of recording your spouse’s conversation without their consent, it would be in your best interest to consult with both a skilled and knowledgeable divorce lawyer. Many lawyers can field both topics. A local attorney will be most knowledgeable regarding what your state laws have to say regarding recording conversations.

The attorney will be able to determine whether any defenses could apply to your case, such as if you assumed the other party was aware that they were being recorded. Your criminal defense attorney will protect your rights and represent you in court. The divorce lawyer will help minimize any damage to the divorce process caused by secretly recording your spouse and can negotiate with your spouse’s lawyer (or directly with your spouse if they don’t have a lawyer).

Contact an extortion lawyer if you believe you are a victim of communications privacy laws. A qualified lawyer can provide you with the legal guidance and representation needed to fully protect your legal rights throughout the process. If you have any questions or inquiries, they can keep you informed along the way as well.