One-Party vs. Two-Party States of Confusion
The recent Taylor Swift vs. Kanye West kerfuffle over the unauthorized taping of phone conversations highlights an important issue: consent of the parties involved.
As you or may or may not know (and if you have tweens at home like I do, you definitely know), Taylor Swift was furious after finding out that Kanye’s wife Kim Kardashian released tapes of her private phone conversations with him. The audiotape of the call seems to indicate that Swift signed off on the saucy lyrics referencing her in Kanye’s song “Famous” in advance and was not blind-sided as she later claimed.
You as the producer need to be aware that if your taping plans include recording in-person conversations and telephone calls, and that includes videotaping that captures audio, there are federal and state wiretapping laws that may impact your production plans. The last thing you want is to have to make a call to your production counsel sharing that criminal charges have been filed and a civil claim for monetary damages is also brewing.
What Constitutes “Consent”
“Consent’ is a core issue when recording and its determination varies by state. In some states, “consent” is given if the pertinent parties are clearly notified that the communications will be recorded, and they then engage in the conversation after receiving the head’s-up. This is exactly why when you call to complain about a bill, the customer service department message starts off with “This call may be recorded or monitored for quality assurance or training purposes.” Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. Under a one-party consent law, you can record a phone call or discussion so long as you are a party to the chat. Furthermore, if you are not a party to the tête-à-tête, a "one-party consent" law will allow you to record the conversation or phone call so long as one of the parties involved grants their consent and has full knowledge that the communication will be recorded. Always ensure that you have this consent in writing in advance as part of your release forms!
The Threshold Question of the State and Its Recording Laws
Legally, the first thing you need to know when recording is whether you are filming in a state that requires the affirmative consent of all of the parties involved in the audio conversation. Federal law and many state wiretapping statutes permit recording if one party (including you) to the phone call or conversation consents. This is, not surprisingly, called a "one-party” consent law and speaking in a general sense, about 80% of states and the District of Columbia have adopted the one-party consent requirement. Please note this huge caveat: Definitely involve your production counsel early on before recording occurs as you need to know the nuances of each state’s laws as some may allow for an umbrella right (or ban) but others may require recording devices be obvious and non-hidden, particular types of notice, etc. Nevada is a good example of this confusion in action as it has a one-party consent law, but the reality is that conflicting interpretations in their state courts make it an all-party consent state in practice.