www.wsillp.com

We often get a phone call from a client who wants to know if they can record conversations that they may not be party to. Sometimes they have already done the recording. In this article I will explain when you can and cannot record a conversation to help you understand it's legality and uses.

The Law:
The United States of America has a pretty tough law that covers wire tapping. Yes, I said wiretapping. Anytime you use a device to record or capture a conversation it is considered wiretapping. Now the Federal Government has left each state to determine how it chooses to apply the law. In Arizona, ARS 13-3417 covers the application of the law, see link: Arizona Wiretapping Law. In general you can record conversations that you are party to. Adding to that, you can record a conversation that you are not party to as long as one of the parties is aware of the recording that is taking place. We are called a 'one party' state for wiretapping purposes.

How Does This Apply To You?
Let me give some examples of actual cases of persons that contact us in which they have recorded a conversation.

Case #1: Betty hired us to perform an infidelity investigation. During  the course of the investigation she decided to purchase a "covert" recording device and place it in her husbands car to record any conversations and episodes of infidelity. About 2 weeks into the investigation Betty called us to say she got what she needed, telling us about this recording she captured of her husband and another in the vehicle having sex. I will save you the rest of the story and get to the legality.

Case #1 Legality Ruling: This is an illegal recording. Neither of the parties in the car knew of the recording device and Betty was not party the conversation that took place. Betty had no right record this conversation and could be arrested and charged with a serious crime; a class 4 felony that has prison time!

Case #2: George hired us to do an infidelity investigation. Part of the investigation was to install covert cameras and recording devices in his home. The video recorded without sound, and the audio had to be manually initiated. George had the desire to record his conversations with his wife in order to listen to the conversations at a later time for potential evidence. George made several subsequent recordings of conversations that he was party to.

Case #2 Legality Ruling: This is a legal recording! Due to George recording when he was party to the conversation and no other times, he is legally covered.

Case #3: Tim and Nancy hired us to do some video recording in their home. They believed their daughter was using drugs in and around the home when Tim and Nancy were at work. Tim and Nancy also decided to tape record the phone with a device that automatically begins recording when the phone is picked up. The recording device trapped many conversations on the phone including their daughter who did indeed discuss drug use and purchases.

Case #3 Legality Ruling: This is a sticky situation. Since the device recorded any and all phone conversations whether Tim and Nancy were party or not, it technically is illegal. However, there is no real case law here in Arizona that would suggest a criminal charge would be levied against Tim and Nancy. There is some latitude when parents are using these devices since most prosecutors, judges and juries will be sympathetic to parents attempting to protect their children. Law recognizes the parents need to protect their children and in this case law would more than likely side with Tim and Nancy.

I hope this helps a bit with questions that often arise about recording conversations and devices. These cases are actual and were provided to give some real life scenarios. No reader should take this article in part or full as being legal advice. Any reader that would like to use recording devices should discuss the use with an attorney.

Please visit our website at www.wsillp.com and feel free to contact us for any questions or needs. We encourage comments and questions to this blog entry and will reply to them in a timely manner.