In the movies and TV, how does the good guy who’s been framed clear his name? Easy! He hides a recording device in his pocket, confronts the real bad guy and then baits him into confessing, recording every word! Justice! Right? Perhaps not when audio recording and consent laws are taken into consideration.
Unfortunately, in some states in America, the good guy in this scenario might be breaking the law, and he could actually face criminal charges and be sued in civil court for illegally recording someone!
When it comes to the legality of recording conversations with audio, the law varies by state, but there are two central approaches: States either have a One-Party Consent law, or a Two-Party Consent law.
A one-party consent law means that only one of the parties involved in a conversation needs to be aware that a recording is in fact taking place. So, in these states, our good guy would be fine!
In a two-party consent state, though, everyone involved in the conversation needs to be aware that the conversation is being recorded. So if one person is trying to record another, the law says the person recording must inform the other.
The majority of states in the U.S. have one-party consent.
There are 11 two-party consent states: California, Nevada, Washington, Montana, Michigan, Florida, Pennsylvania, Maryland, Connecticut, Massachusetts and New Hampshire.
However, there are exceptions to the two-party consent law. Say you live in California (a two-party consent state) and you want to record a conversation with a person, but you don’t want to tell them. If the person recording has reason to believe that a crime could be committed, such as extortion, kidnapping, bribery, harassment, or anything involving violence, then that person can record the conversation. In addition, a judge can legally permit it beforehand.
As with many other aspects of life, TV and movies have misled viewers about how real-life situations would or could play out. Just always remember, the old “recorder up the sleeve” trick isn’t always “kosher.”