States with Two Party Recording Notification Requirements

The post I wrote about requiring notification if you are recording someone gets a lot of attention. I have received several calls about it since I wrote the post back in 2011, normally from people seeking clarification or advice.

Last night I got a call from a reporter in Luzerne, which apparently is having yet another scandal. I can only assume they must be bored in Luzerne, with all the legal scandals they endure. Regardless, I am an attorney, so I am always happy when the press contacts me. What can I say?

In this case, the County Comptroller is accused of violating Pennsylvania’s wiretap laws.  He allegedly recorded some meetings and phone calls with various people. The reporter, Michael R. Sisak, wanted me to explain a bit about how and why Pennsylvania law is different from the law in most other states. His article, Pa. One of 12 states to require permission before recording conversations, does a good job of discussing the issues. It was clear to me that he had done his research before we spoke.

What is the Law in Pennsylvania?

Very simply put, in Pennsylvania, you must tell people if you are recording them when they have a reasonable expectation of privacy. This is called a two-party notification requirement. One place you pretty much always have a reasonable expectation of privacy is when you are on the telephone. Of course there are exceptions, there almost always are, but for the most part, if you plan on recording someone on the phone here in Pennsylvania, you need to tell him.  The same holds true for recording any private conversation; in a home, in a car, and in many other places, there is a reasonable expectation of privacy and you must tell someone before you record him in those types of locations. There is a reason that companies tell  you you might be recorded when you call customer service. They are trying to obey the two party notification requirements in states like Pennsylvania.

What States have Two Party Notification?

There are currently 12 states considered to have two party notification, though there is some debate about the exact nature of the law in a few states. The 12 states are:

• California
• Connecticut
• Florida
• Hawaii (with some caveats)
• Illinois (with some caveats)
• Maryland
• Massachusetts
• Montana
• Nevada
• New Hampshire
• Pennsylvania
• Washington

If you are in one of these states, and you desire to record another person, do yourself a favor, tell him.  If you violate the law you can find yourself in very, very serious trouble. Personally, I think it is always wise to tell people you are recording them. Keeps people on the up-and-up.

In other states only one person needs to know about the recording. This is to, as I noted in the article, prevent random third parties from recording private conversations.

Ignorance of the Law is No Excuse

I mentioned to Mr. Sisak that one of the issues with having so many different laws is that people often don’t know when they are violating them. That is not because I believe different states shouldn’t have the right to pass different laws, but it is an acknowledgement that this kind of differentiation can be very confusing. After all, if I drive in Pennsylvania, I can pick up my cell phone and use it. In New Jersey, I cannot do so. If I were unaware of this, I could end up with a very pricy ticket. One might argue, therefore, it is unfair to penalize someone because he doesn’t know the law.  But that isn’t how our system works.  It is our job to know the law before we do something foolish. That would include recording a private phone conversation.