TDNCLA: Can I Secretly Record Phone Calls?

March 18, 2013

Dear Li’l Tommy,

Let’s say I have a budding career as a Jerky Boy and I’ve recorded 2 Domino’s Pizza places talking to each other and now I want to get into the highly lucrative rich people conversations market. Perhaps recording two highly placed gentlemen in the NFL discussing their feelings on NFL rules. How would I best set up these conversations to avoid legal repercussions? If I use multiple cell phones on speaker phone making myself a middleman, can I, being part of the conversation, record it without needing additional consent?


Recording Only For Laughs


Dear ROFL (I see what you did there),

First, thank you for sparing me from making up another contrived question this week–readers, please do feel free to send your most important legalish questions to–as you’ve probably gathered by now I can’t provide formal legal advice (see title of column), but you shouldn’t be writing to a “humor” columnist for that anyway.

Alright, on to your question–because I’m not a terribly good lawyer, of course the answer is, “it depends.”

Mostly, it depends on what states the participants are in when the call is made.  There are two basic models for state laws–regulations  that are generally (and cleverly) identified as “One Party Notification” and (you guessed it) “Two Party Notification.”   Currently, 12 states require “Two-Party Notification” – you have to tell the other person that they’re being recorded – two (Delaware and Vermont) are sort of up in the air on the issue, and the other… however many (36? I’m horrible at math, hence the J.D.) plus the District of Columbia are “One Party Notification” jurisdictions. When call participants are subject to different laws, the stricter law applies – calling somebody in Florida will trigger the requirement that said Floridian is notified of the recording.

So if you’re making a prank call from a One-Party state to a One-Party state, you’re probably OK to record it. Otherwise, how would we have those delightful Crank Yankers and other such professional purveyors of phone phunnies?

If you’re in a Two-Party state, you’ll either need verbal or written consent from all parties, or you’ll need to state up front that you’re recording the call.  You can evidently also use a recording device supplied by the phone company that beeps at regular intervals to let people know that they’re being recorded in some states–although, to be fair, I’d be mostly confused by that one, as I’d probably think I had another call coming in and keep hanging up.

But let’s be honest here. Y’know, for a change of pace.  What you’re talking about doing isn’t really participating in the conversation – as an aside, my amateurish prediction is that the defense to the inevitable legal action related to the NFL recording will likely be “Oh, no, your Honor, I was participating – listen, I started the call!” and that isn’t going to fly–first off, calling the Buccaneers was a bad move, as Florida’s a Two-Party state; (B), the judge will say “yeah, no, you started the conversation under false pretenses and then stopped participating;” and (III), don’t ever, ever mess with the NFL. Their attorneys are unbelievably good at what they do, trust me. Like, the Lawrence Taylors of litigation, the Jerome Bettis-es of jurisprudence. The Joe Montanas of legal mumbo jumbo. The Walter Paytons of… um… suing your sorry hide to kingdom come.

What you’re really talking about is eavesdropping (generally a felony), or at least any prosecutor worth his or her weight in old Law & Order DVDs will try to prove that it is. Here, take a look at the New York statute, and try to tell me you’ve got no shot of being prosecuted under it.  Also, there’s some federal law on point as well. Yep, the Feds.  Do you really want to deal with the Feds over a dumb joke?

So you want my advice? No? Well too bad, here it is: don’t do it. Stick to making your prank calls the way nature intended: by asking the local tavernkeeper to connect you with your friend Hugh. Hugh Jass.

Dial “M” for Metaphors, Tortured,