The following was compiled by Hilary B. Miller, Esq.,
moderator of the CIS:Legal Forum. Uploaded with permission.


 SURREPTITIOUS TELEPHONE RECORDING FAQ
 -------------------------------------

The question is frequently asked whether one party to a telephone conversation
may tape record the conversation without the consent of the other party.  A
related question involves surreptitious recordings of employees or others
by their employers or others using an extension telephone or similar device on
the same premises. This area is subject to a patchwork of both federal
and state regulation. Accordingly, it is necessary to look at *both*
federal and state law; whichever law is more restrictive will generally
be applicable. Federal law may preempt state law in certain instances.
As noted below, an attorney should be consulted because of the complex
interplay of different regulatory schemes.

Federal Law

The federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
Sec. 2510 et seq., prohibits the willful interception of telephone
communication  by means of any electronic, mechanical, or other device
without an applicable exemption. There are two principal exceptions:

        Federal Exceptions

        -- Consent

In the absence of more restrictive state law, it is permissible to intercept
and record a telephone conversation if one or both of the parties to the
call consents. Consent means authorization by only one participant in the
call; single- party consent is provided for by specific statutory
exemption under federal law. 18 U.S.C. Sec. 2511(2)(d).

        -- "Business telephone" exception

The "business telephone" exception, which generally allows monitoring of calls
and taping over an extension phone which is both provided to a
subscriber in the ordinary course of a telephone company's business and
is being used by  that subscriber in the ordinary course of its
business.  This provision generally permits businesses to monitor the
conversations of their employees, including personal conversations.

                Penalties

The federal statutes provide criminal penalties for unlawful interception of
telephone conversations, including up to five years' imprisonment or a
maximum of $10,000 in fines.  They also allow for civil remedies, by
which private parties are entitled to recover actual and punitive
damages, together with fees and costs.

        State law

State law most directly governs the propriety of any recording and is not
consistent with regard to the availability of exceptions to the general
rule against interception. In general, the state law of the state where
the recording is *made* (rather than to which the call is placed, if
different) will govern. If federal law is more restrictive than the
state law of the place where the taping occurs, then federal law will
generally be controlling.  The following list includes all of the
all-party-consent states (and some one- party states) as of March 14,
1994.

                California

California prohibits telephone monitoring or recording, including the use of
information obtained through interception unless all parties to the
conversation consent. Cal. Penal Code Secs. 631, 632. There is no
statutory business telephone exception and the relevant case law all
but excludes this possibility. California courts have recognized
"implied" consent as being sufficient to satisfy the statute where one
party has expressly agreed to the taping and the other continues the
conversation after having been informed that the call is being
recorded. Violation is punishable by a fine of up to $2,500,
imprisonment for not more than one year, or both. A civil plaintiff
may  recover the greater of $3,000 or three times the amount of any
actual damages sustained.

                Connecticut

Under Connecticut law, recording without consent of at least one party is a
Class D felony punishable by one to five years' imprisonment.  Conn.
Gen. Stat. Sec. 53a-189.  However, failure to obtain the consent of
*all* parties is a statutory tort for which damages, costs and
attorneys' fees may be recovered. Conn. Gen. Stat. Sec. 52-570d. There
are exception in the latter case for, among other things, recipients of
extortionate or harassing calls.

                District of Columbia

D.C. follows federal law. Single party consent is sufficient and potentially
unlawful interception devices do not include telephone equipment
furnished to a telephone company subscriber and used in the ordinary
course of business. D.C. Code Ann. Sec. 23 - 541 et seq.

                Florida

Florida is a strict all-party-consent state. Fla. Stat. Ann. ch. 934 (Supp. 1980).

                Illinois

Illinois requires prior consent of all participants to monitor or record a phone
conversation. 720 ILCS 5/14-2.  There is no specific business telephone
exception, but in general courts have found extension telephones do not
constitute eavesdropping devices. Criminal penalties for unlawful
eavesdropping include up to three years' imprisonment or $10,000 in
fines and the civil remedy provides for recovery of actual and punitive
damages.

                Maryland

Maryland is a two-party-consent state. Md. Cts. & Jud. Proc.Code Ann. Sec.
10 -402 (1980).

                Massachusetts

Massachusetts requires consent of all parties unless another exception applies.
Mass. Gen. Laws Ann. ch. 272, Sec. 99. Telephone equipment which is
furnished to a phone company subscriber and used in the ordinary course
of business is excluded from the definition of unlawful interception
devices. Id. at  99(B)(3). Office intercommunication systems used in
the ordinary course of business are similarly exempt. Id. at
99(D)(1)(b). The criminal penalty is a fine of up to $10,000,
imprisonment for up to five years, or both. In civil litigation, an
injured party may recover actual and punitive damages as well as costs
and fees. It is a separate violation to divulge or use the information
garnered through unlawful interception and an additional penalty of up
to two years in prison or $5,000 may be imposed on this count.

                Montana

Montana is a two-party consent state.  Mont. Rev. Codes Secs. 94-8-114 (1973).

                New Hampshire

New Hampshire requires the consent of all parties. N.H. Rev. Stat. Ann. Secs.
570 A:2 (Replacement 1974).

                New York

New York is a one-party-consent state. N.Y. Penal Law Sec. 250.00. There is no
business telephone exception; the New York Attorney General has taken
the position that an employer must obtain the prior consent of one
party before intercepting an employee's calls. Violation carries a
maximum criminal penalty of four years' imprisonment. There is no civil
cause of action.

                Oregon

Oregon requires the consent of all parties. Or. Rev. Stat. Secs. 165.540
(Replacement 1979).

                Pennsylvania

Pennsylvania requires the consent of all parties. 18 Pa. Cons. Stat. Ann.
Sec. 5704(4), but surreptitious use of extensions for these purposes
constitutes interception within the wiretapping statute. Felony
penalties may be imposed for violation of the Pennsylvania statute.

                Washington

Washington requires the consent of all parties. Wash. Rev. Code Ann. Sec.
9.73.030 (Supp. 1979).

        Lawyers

Under ABA Formal Opinion 337 (August 10, 1974), and certain state and local
opinions, it may be unethical for an attorney to make an undisclosed
recording of other persons.

        FCC Rules

The FCC Regulations require telephone carriers to file tariffs with the
Commission to the effect that: (1) adequate notice be given to all
parties that their conversation is being recorded; (2) that such notice
be given by the  use of an automatic tone warning device; and (3) that
the tone warning device be furnished, installed and maintained by the
telephone company along specified technical guidelines. 11 FCC 1033,
1050, 12 FCC 1005, 1008 (1947). These regulations are directed toward
the telephone carriers, and do not make recording a criminal offense.
However, a person who fails to use the "beep" tone as required may have
his telephone service terminated.

        Evidentiary issues

Individuals and businesses that make surreptitious recordings often do so
with the expectation that the recordings will be useful as evidence.
Such recordings  are subject to significant barriers to use as
evidence. First, if made in violation of either federal or state law,
the recordings will almost certainly be  inadmissi- ble.  Second, even
if lawfully recorded, the tapes will be exempt from the  hearsay rule
and will not, in most jurisdictions, be usable for impeachment.  Anyone
contemplating an evidentiary use of surreptitious recordings should
consult with an attorney prior to making the recording.

        Conclusion

Because the law relating to surreptitious recording of telephone conversations
varies from state to state, a person who may have valuable rights
affected by  such laws should consult with an attorney who specializes
in such matters.  The foregoing should not be construed as legal
advice, which can only be given by an attorney who is admitted to
practice in your state, to whom you pay a fee, and who in return
undertakes to protect your rights and to explain your
responsibilities.

                                 ** Hilary **
                          17-Sep-95 at 18:02:45 EDT