We are living in an increasingly digital age, with students taking their phones everywhere they go and having the ability to record almost any interaction. While this can be very helpful in the event of a legal issue, it can also raise questions about the legality of the recording itself. So, what is the rule about the legality of recording conversations and interactions with others?
The answer is: it depends. There are two general standards when it comes to recording, which are referred to as one- or two-party consent.
If your state is a “one-party” consent state, then generally, you may record a covered conversation, interaction, or phone call without informing the other participants, so long as you are a party to the conversation (i.e., physically present and actively taking part in the interaction). This could look like turning on a phone recording during a discussion with a teacher or an argument with another student.
However, different rules apply if you secretly try to record others' conversations or interactions in which you are not an active participant, and doing could have serious legal consequences. Recording at school can present additional considerations. Even if a recording may be permitted under a state's recording law, recording a class, teacher, or other students could go against school policies or implicate other privacy concerns. Whether a particular recording is lawful or permitted may therefore depend on both the circumstances of the recording and the applicable school rules.
Other states have what are commonly called “two-party” or “all-party” consent laws. Depending on the state’s law and the circumstances, all parties taking part in a private conversation or interaction may need to give consent prior to being recorded. Recording someone without their permission in such a state can result in legal consequences and may carry civil or criminal consequences.
Finally, what happens if you record a call with someone in a different state? Things can become more complicated when people participating in a phone or video call are located in different states. Different states’ laws may potentially apply and determining which state’s law governs can involve a complicated legal analysis. When in doubt, the safest approach is to obtain everyone’s consent before recording.
Recordings can be valuable evidence in legal proceedings and can help clear up misunderstandings or disputes. However, recording laws vary significantly from state to state, and school policies and other privacy considerations may also apply. Before recording a conversation, it is important that you take a moment to understand the laws and rules that apply. When in doubt, consider asking for consent or seeking legal advice before pressing record.
Sources:
https://www.allenharrislaw.com/classroom-recordings-legal-guidelines-and-privacy-rights/
https://www.mwl-law.com/wp-content/uploads/2018/02/RECORDING-CONVERSATIONS-CHART.pdf
https://www.justia.com/50-state-surveys/recording-phone-calls-and-conversations/#pennsylvania
https://www.vistanet.co/call-recording-laws-state/#interstate
Written by Kailey Sweet, AW Summer Intern