Surreptitious Recording
Think before You Press "Record"

Your little stereo recorder is so small and cool that it may be tempting to try recording someone surreptitiously, without his or her knowledge, just for the fun of it.

But stop and think a minute the next time you're tempted to do so, especially if you're a podcaster or journalist.

Presumed Consent

You can record, videotape, or broadcast any conversation if all parties to the conversation consent. The consent of all parties is presumed if, during a face-to-face interview, your recorder is in plain view. Most states permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded.

"One-Party" Consent

38 out of 50 states, including the District of Columbia, have a "one-party" rule that requires the consent of at least one person in a conversation before it can be surreptitiously recorded. This means that as long as one person (for instance, the recorder) consents to the recording, she can record the conversation without informing the other parties she is doing so.

12 states forbid the recording of private conversations without the consent of all parties. They are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.

Federal Law

Federal law permits one-party-consent recording in most circumstances. The federal wiretap law, passed in 1968 and amended in 1986 and 1994, permits the unauthorized interception of most forms of electronic communications when one party consents unless the interception is made for the purpose of committing a crime or tort.

Most states have copied the federal law. Some go further and impose additional penalties for using or divulging the unlawfully acquired information and trespassing to acquire it.

Check out all the U.S. tape recording laws at a glance

What to Do?

When in doubt, get consent if you can. Try saying something like, "I'm going to turn the recorder on. Is that OK?" If they say yes, turn your recorder on and say, "I have turned this recorder on with your consent. Is that right?" Or something to that effect. In most cases, recorded evidence of consent is not required, but it wouldn't hurt.

For more detailed information, check out 'Can We Tape?': A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C. , published by The Reporters Committee for Freedom of the Press. It was relied upon heavily in the course of writing this article.