Clients often asked whether it would be legal for them to record another person without that person's consent, or even without that person's knowledge.  This is often an issue in child custody or support cases when the other side makes threats or displays behavior they later deny in the courtroom, or even in a criminal case when a witness will talk about what they saw or did outside of court but might lie in court, or in any lawsuit where a person might candidly admit what happened in a conversation with the client or a friend of the client and then come up with another story entirely when they testify, or even just to preserve a witness's memory when it is fresh to help them recall things months (or even years) later at the time of trial.  Some clients have also asked about using a recorder to tape a witness or the other side in a case when they talk with them before the case reaches the courtroom for trial, since some people will speak honestly with a client in person and then lie under oath when testifying in the courtroom.   *The simple answer is that Tennessee law allows you to record
any conversation to which you are a party. But if you are not a party to the conversation, or don't have permission to record from someone who is a party to the conversation, under Tennessee law recording the conversation is a felony, punishable by up to 12 years in state prison, and the person or persons you record can also sue for damages and collect up to $10,000 for your invasion of their privacy. TCA 39-13-601 et seq.

Federal Law
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.  But this only applies to intercepting calls you are not a party to — such as setting up some sort of bugging or recording equipment to record the calls of someone else when you are not taking part in the phone call; it does notprohibit recording your own phone calls or calls made to you when you are still on the line, or even calls where you are on an extension phone and listening with the knowledge of the others on the phone, and none of it restricts your right to use an answering machine and record the calls and play back the messages later for anyone else, even if the caller made clear that you were the only one they intended to ever have listen to it.  In fact the Omnibus Crime Control and Safe Streets Act of 1968 specifically exempts calls with at least one party approving the recording (usually the person approving it is the person doing it). 18 U.S.C. Sec. 2511(2)(d).

  *In other words Federal Law is the same as Tennessee law on this point.

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. Violations of the Electronic Communications Privacy Act may also qualify  for an award of minimum statutory damages of $10,000 per violation.

Lawyers. 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, and it is also unethical for an attorney to have a client do what the attorney is prohibited from doing simply as a means of avoiding the rule.  In other words an attorney can not tell the client to make an undisclosed recording simply because the attorney could not do it himself.  An exception to the rule is in criminal cases.  In criminal cases an attorney himself is allowed to record witness statements without telling them they are being recorded.  Because of this I routinely advise clients in criminal cases to record witness statements and to do so without disclosing the recording, even urging innocent clients in criminal cases to use concealed recorders or to record phone conversations with the witnesses.  (I even have some fairly inexpensive equipment that works very well on any modular phone to allow recording phone calls on any recorder, and on request will allow a client to use it.)  But I specifically do not advise clients in civil cases to make such recordings.

FCC Rules. Federal Communications Commission (FCC) Regulations require phone companies to (1) provide adequate notice to all parties when their conversation is being recorded; (2) that such notice be given by the use of an automatic tone warning device (beeps); 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 rules control the phone companies, not you -- they do not make recording your own conversations a crime.  While a private person who fails to use the  "beep" tone as required could have his telephone service terminated, this is not something at all likely to happen.

Evidentiary issues. Individuals and businesses that make surreptitious recordings often do so with the expectation that the recordings will be useful as evidence.  Under Tennessee law, an undisclosed recording you might make would be admissible into evidence so long as a court finds it relevant to issues at hand in the case, and it would also be admissible to show that a witness either lied on a particular point of testimony or made a prior inconsistent statement, or has a bias in the case.  The one requirement is that the "tape recordings (or) transcripts... (are) presented in evidence by (a) witness who was present during their recording or who monitored the conversations, if he was so situated and circumstanced that he was in a position to identify the declarant with certainty."  State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980).  Now, you can't admit a tape into testimony just to show that a witness is a lowlife, but there are generally a number of ways to get the tape into evidence, though they will require an attorney to know the right way to do so.

Important Note. While it is legal to make such recordings in general, it is still illegal to do certain things with them, or to make them with the purpose of doing something illegal -- such as to blackmail the person recorded, or to publically disclose embarrassing information about their private life, or to commit any other illegal act.

Conclusion. Because the law relating to surreptitious recording of telephone conversations varies from  state to state, a person who may have valuable rights affected by such laws should consult with an  attorney who specializes in such matters.  The foregoing is intended to be a general summary, not an  exhaustive treatise, but it is as of the date of this writing in January of 2000 the law in Tennessee.  Beyond the State of Tennessee, you should consult counsel for the law in your state.

Other States. Without even beginning to vouch for their accuracy or value, at least two other websites purportedly explain the law on this topic in all 50 states: http://www.rcfp.org/taping/ and a site maintianed by the American Civil Liberties Union at  http://www.aclu.org/issues/cyber/phonelaw.html

Click here to e-mail questions, suggestions or corrections regarding this page.

                                            Disclosure on Non-Representation Link
                                            Disclosures on Certification of Specialization Link