Audio Consent

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. 

The Two-Party States – Evolution and Exception

For all practical purposes, “two-party” should always be interpreted as meaning that “all” parties to the recording need to grant their consent before the red-light goes on.  Apart from Nevada which is a de facto two-party state, please also be aware that the states below require the consent of everybody involved in a conversation or phone call before the conversation can be recorded:

California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington.  Hawaii is generally a one-party state but requires the consent of all involved if the recording device is installed in a private location.

I can’t stress this enough: Before filming, bring your production counsel in to assess whether there will be issues in the states you plan to do your taping.  The laws of the one- and the two-party states do evolve (about as swiftly as a coelacanth) to meet the needs of a changing world.  Even those states where the law appears to have clarity, there may be some quirks that could have serious monetary implications to your production company.

States of Confusion

         Illinois, traditionally a two-party state, has moved into our electronic times.  Previously, all parties had to consent to the recording of in-person, telephone or electronic oral conversations. In 2014, Illinois courts limited the scope a bit so that “eavesdropping” only applies to conversations that the party otherwise would not have been able to hear, thereby effectively making it a one-party consent state.  This revision is slow to roll out and confusion in remains. However, Illinois law has been amended to permit recording of conversations in public places (like courtrooms) where no person reasonably would expect their discussion to be private. 
  Massachusetts law prohibits secretly recording a conversation, whether the conversation is in-person or taking place by telephone or another medium.  As such, when you are taping in Massachusetts, you should always inform all parties that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not "secret"). Once made aware that you are recording, Massachusetts law puts the onus on the person to leave the conversation if they don’t want to be recorded.
  Michigan has always been considered a two-party state, perhaps incorrectly.  In The Wolverine State, a Court of Appeals has interpreted that the state eavesdropping statute only applied to third-party interception of a conversation; if you are a participant in a communication, you have the right to record it.
  Montana has a bit of wiggle-room to its two-party requirements. It allows for exceptions such as recording elected or appointed public officials or public employees when the recording occurs in the performance of an official duty, individuals speaking at public meetings; and individuals given warning of or consenting to the recording.
  Oregon is essentially a one-party state but does require the consent of all involved if you wish to record an in-person communication.
  Washington state law dictates that permission is given if any of the parties announces that they will be recording or transmitting the conversation but for it to have effect, you MUST also ensure that the notice is recorded.

Even when it appears that there are hard and fast rules to make your production life easier, there aren’t.  There are enough exceptions and exemptions, both good and bad, that you need to talk to your production counsel first before taping.  As always, be smart and in tandem with your counsel, formulate your battle plan to keep on the right side of the ever evolving law when filming.  To paraphrase Kanye: Nothing in life is promised except death… or someone suing because they believe they didn’t consent to being recorded.