As a Houston family law attorney who also practices some criminal defense case, one of the common questions I get is “can I record a conversation with someone if I don’t have their consent?” or “Can I videotape someone without their consent?” The quick answer is yes, in Texas you can, but here are more details you need to know:
One of the common misconceptions people have is because they do not have someone’s consent to record a conversation, that they cannot record them or that it would be illegal to record them. Some people think that while it may not be illegal, they wouldn’t be able to use the recording in court as evidence against the other person. This is not true, at least in Texas it is not.
You must be a party to the conversation to be able to record someone legally without their consent.
While some in some states it is illegal to record someone without their consent, in Texas you are allowed to record AND use the recording as evidence in court or criminal investigation, as long as you are a party to the conversation. This basically means that you CANNOT record (either by voice or video) other people’s conversations if you are not in that conversation. But if you are involved or part of the conversation or discussion, you are allowed to record the conversation without even having to notify the other person (or people if more than one person.)
Not only do you not need to get someone’s consent to record them, you don’t even have to notify them, as long as you are a party to the conversation.
So does this mean I can record someone without even telling them and still be able to use it as evidence against them in a potential lawsuit or investigation?
Yes, as stated above, you may record someone without their consent or knowledge AND be able to use it against them in court. In fact, this is one of the more useful ways to gain advantage in your case over the other party. For example, if the other person is talking to you in an aggressive or harsh tone, if they are hitting you, or saying something that is self-discriminating, recording them without notifying them can help bring justice, show the truth, and give you an advantage in court depending on the type of case you have. In family law cases, it can help you get a disproportionate share of assets (more on this to be discussed in other blogs), or help you get spousal support. In custody cases, it can help you in your battle to gain primary or sole custody and limit the other parent’s parental rights and visitations. In criminal cases, it can help exonerate criminal allegations against you, or if you are the victim, help arrest and convict the perpetrator.
Can camera footage be used in a divorce case?
Yes. If you are going through a divorce, or are in a shaky relationship in which you think a divorce may come soon, having security cameras in the house is a smart idea. I am in no way advocating purposely putting someone in a situation to hit the record button, but to assure you always stay alert and safe.
Contact Us
If you are looking for a family, personal injury, or criminal defense attorney or are simply interested in knowing more about recording laws, or any other legal questions, call or email me, Amir Tavakkoli, Houston attorney from the A.T. Law Office. My office phone number is 832-800-5590 and the email is . While we primarily practice in Harris and Montgomery County, we also travel to other counties such as Liberty County, Chambers County, Galveston County, Ford-Bend County, Waller County, Brazoria County, etc. Contact the A.T. Law Office by calling (832) 800-5590 for a free consultation.
There are many reasons you may want to record a call. Journalists find it to be a more accurate way to interview sources, and it allows you to focus on the conversation without having to look away to take notes. It eliminates the need for shorthand. It’s also incredibly convenient when you want a transcription of an interview or event.
That leads us to one important question to ask anytime you interview someone. “Is it OK to record this phone call?”
From a legal standpoint, the most important question when recording calls is consent. As a general rule of thumb, it’s also polite to make sure that all parties involved in a conversation are aware that it’s being recorded. This is not only the cordial thing to do, but it can help you earn trust with interview sources and avoid any awkward miscommunication down the road.
So, how can you know if getting permission is a nicety or if it’s regulated by law? You should start by researching the call recording laws state by state.
Unsure about your call recording rights? Here’s what you need to know about recording laws by state:
It’s OK to record conversations that take place in person or over the phone. In most states, only one party needs to give consent for recording. That person can be you, the interviewer, and you can legally hit the record button without letting the other person know what you’re doing.
Eleven states require two-party consent, however. In other words, everyone involved in a conversation must agree to be recorded. Those states are California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.
(Don’t let the phrase “two-party” throw you. If there are five people on a call, it would technically require five permissions. The “two” in “two-party” implies everyone on the call knows what’s going on.)
More Information on Recording Laws by State
Federal and state laws that govern the recording of conversations aren’t always easy to understand. So, we’re here to help clear up any confusion you might have about your rights when it comes to recording conversations.
One-Party Consent or Two-Party Consent?
According to Wisconsin-based law firm Matthiesen Wickert & Lehrer, 38 states and the District of Columbia allow what’s known as “one-party consent” for recorded conversations, either in person or over the phone, while the other 11 states have what are considered two-party laws and actually mandate that all parties must give their permission before a conversation can be recorded.
In Vermont, state legislators haven’t enacted a consent law for recording conversations. Therefore, Vermont would be treated as a one-party state based on federal law.
If we are talking about state laws, why does federal law matter? Federal law requires one-party consent, enabling you to record a conversation in person or over the phone, but only if you are participating in the conversation. If you are not part of the conversation but you are recording it, then you are engaging in illegal eavesdropping or wiretapping.
Federal law has the strictest basis for phone call recording laws, with any state laws that are stricter being the standard for that state.
Different Recording Rules in the Different States
Adding to the patchwork quilt of recording laws is that in some states, consent kicks in only when those involved in a conversation have a “reasonable expectation of privacy,” according to legal website Justia.com. In other words, you expect privacy if, say, you’re inside your home and not in a public place like a coffee shop.
Moreover, how the consent is given isn’t the same everywhere. Some states require consent to be explicitly stated, Justia.com says, whereas other states are OK with consent only being implied.
State laws get even stickier when you dive into the details.
For instance, Nevada has a one-party consent law on the books, according to Justia.com, but the state Supreme Court has viewed it as an all-party consent law.
In Maryland, all parties must consent to recording conversations, whether in person or over the phone, Justia.com says, yet courts there have ruled that consent is restricted to cases when there’s a “reasonable expectation of privacy.”
Given the inconsistencies between state and federal laws, Justia.com recommends following the strictest call recording laws that apply to recording a conversation or getting permission from each party to record a conversation.
You’ll also avoid any misunderstanding if you’re honest about your recording practices, a perk that’s important when doing journalism, marketing, or other interview work.
Recording Interstate Conversations
Now, what happens if you’re in a state with one-party consent, like New Jersey, and recording a phone conversation, but the person on the other end of the phone is a state with two-party consent, like Pennsylvania?
“A good rule of thumb is that the law of the jurisdiction in which the recording device is located will apply,” Matthiesen Wickert & Lehrer says.
However, it can be difficult to determine whether federal or state laws govern a recorded phone conversation, according to Matthiesen Wickert & Lehrer, and whether, in the example above, the recording law in New Jersey or Pennsylvania prevails. Therefore, it’s wise to heed the common advice and follow the toughest phone call recording law or obtain consent from every participant in the call (or both).
“It is generally legal to record a conversation where all the parties to it consent,” Matthiesen Wickert & Lehrer says.
If participants in a phone conversation are in different states, then the odds of federal law applying to the situation go up, according to Matthiesen Wickert & Lehrer.
“However, when you and the person you are recording are both located in the same state, then you can rely with greater certainty on the law of that state,” the Digital Media Law Project says. “In some states, this will mean that you can record with the consent of one party to the communication. In others, you will still need to get everyone’s consent.”
Penalty for Violating Recording Laws
Now that we’ve established that it’s best to disclose your intentions and get everyone’s verbal permission to record, it’s unlikely that you will run afoul of the law. But what are the consequences if you break one of these laws, no matter whether it involves one-party or two-party consent?
As a general rule, you could be charged with a crime, slapped with a lawsuit, or both. In some cases, you could be charged with a more serious felony rather than a less serious misdemeanor. In many states, you could face jail time, fines, or both if you’re found guilty in a criminal court of violating consent laws.
If you’re ever in great doubt about the legality of recording a conversation, err on the side of caution and don’t record it. And if recording conversations is part of your everyday work, then it might be a good idea to consult an attorney to make sure you’re following federal and state consent laws.
Technology Can Help you Follow the Rules
While it used to be much easier to secretly record someone, today’s tech has actually made it more likely that everyone will follow the rules. Video conferencing software like Zoom requires everyone on the call to actively agree to the recording; they’ll hear an audible prompt and have to click the permission button before the call leader can start the recording.
Some phone apps will offer similar shortcuts. Before a call can be joined into conferencing, the people on the line may all have to dial a #1 or give a vocal “yes” in response to an automated prompt. At a minimum, call recording apps may give a prerecorded message at the beginning of the call letting attendees know that they are on a recorded line and giving them an opportunity to leave the call if they aren’t comfortable.
These tech tools reduce the chances that you’ll be caught illegally recording anyone, but it’s still wise to brush up on the laws for the locations you call most.
Etiquette Tips for Recording Conversations
Now you’ve got things squared away regarding phone call recording laws for consent. Let’s go over some etiquette tips for recording conversations. Aside from checking your state’s laws on consent and alerting all parties involved that you’re recording a conversation, here are seven etiquette recommendations. Following them will help you appear professional, get the details you want from your conversation, and build the relationships you need for future calls with the same people.
Be open and honest
In some states, you might be breaking the law if you’re recording secretly, even in a public place, according to the Digital Media Law Project.
“Whenever possible, make it clear to those around you that you are recording. Don’t hide your camera or tape recorder,” the project advises. “Being upfront puts people on notice that they are being recorded, affords them an opportunity to object, and undercuts any argument that you are acting secretly.”
Listen carefully
It sounds simple, but if you’re “in charge” of a conversation that’s in person or over the phone and you’re recording it, then it’s your job to listen to what the other person or people are saying. After all, you’re recording the conversation to pick up information that you can refer to later.
Don’t check out and assume the recording will handle everything for you. It’s best to actively listen so you can ask relevant questions and be interested in what the callers have to say.
Don’t mumble
One of the worst things that can happen when you’re listening to a recorded conversation is that you’re not able to understand some or all of what was said. Therefore, you and everyone else engaged in the conversation should speak clearly. If you have to remind someone to speak clearly, then do so — politely. Slow down, pause between sentences, and spell out difficult to understand words, technical lingo, or foreign language words.
Don’t eat
So, maybe you skipped lunch to hop on a phone call that’s being recorded. That doesn’t give you permission to noisily chomp on your PB&J sandwich and carrot sticks during the conversation. Wait till after the call to eat your lunch.
Another tip: Don’t chew gum during the conversation. It’s rude and distracting (and no one wants to hear it again on the recording).
Make sure everyone’s identified
If you’re chatting on the phone, especially during a conference call, everybody should identify himself or herself at the outset. Ask that they spell their last name for clarity.
Watch your tone
Again, if you’re on a phone call, be mindful of how you’re coming across. Your tone of voice can convey many messages — some of them not so positive.
“Do not sound overly anxious, aggressive, or pushy,” AdvancedEtiquette.com suggests. If you do need to interject, do so with tact. A simple, “Excuse me, but I need to quickly clarify what John said,” or something similar will do.
Be respectful
In the case of a recorded phone call, focus on the conversation and avoid multitasking. For example, AdvancedEtiquette.com suggests steering clear of distractions such as your computer, your paperwork, or your coworkers. Check your phone or earbud mic set up to be sure you don’t have it creating noisy feedback. You don’t want your phone to cause an annoyance for others.
Which Conversations Should Be Recorded?
Now that you’re up to speed on etiquette, what types of conversations should you be recording? Here are four examples.
Interviews
If you’re a writer, it’s often wise to record interviews you’re conducting. This way, you can review the recording or transcript to double-check information or flesh out quotes if you were simultaneously taking notes. It’s also very useful for saving in your future story files. Many good ideas can come from past interviews that were preserved as transcripts.
Client meetings
Whatever line of business you’re in, it might make sense to record a meeting with a client. Afterward, you can listen to the recording or read the transcript to refresh your memory about key points. This can also provide confirmation that you’re following their directions, if they later claim that they wanted a different service or product from what you provided based on the phone meeting.
Conference calls
You might need an official record of the business conducted during a conference call, especially if any formal votes were taken. If there’s any doubt about what happened during the call, you can go back to the recording or transcript for verification.
Lectures
During a long lecture at school, you might miss some of the most vital parts when you’re writing them down, especially if your hand cramps. Recording the lecture and listening to it later or poring over a transcript can help you recover information that’s not in your written notes.
Transcribing a Recorded Conversation
Once you’ve recorded a conversation, how do you transcribe it?
Well, you can do it the old-fashioned way by listening to the recording and then writing down or typing the conversation verbatim. That’s very tedious and time-consuming.
However, a number of digital tools are available to help speed up audio transcription. We recommend you give the Rev Call Recorder app a try. The app allows you to capture important phone conversations — at no charge — and then have the call transcribed for just $1.50 per audio minute. You did the hard work on phone call recording laws, now let Rev make it easy on transcription.