Have you ever had that sinking feeling that your private conversation wasn’t so private after all? In today’s digital age, it’s possible that you have been recorded without your consent or knowledge. Finding out that your private conversation has been recorded can be unsettling, but try not to panic. This guide will walk you through the steps you can take to protect yourself and better understand your rights.
Initial Steps to Take If Recorded
If you find yourself in a situation where you suspect or know that your conversation has been recorded, consider taking the following preliminary actions:
- Stay Calm and Assess The Situation
- Try to recall the content of the recorded conversation; did you or the other party say anything that could potentially be damaging, confidential or embarrassing? If not, legal action may be unnecessary. If it was a phone call involving parties from different states, be aware that there may be conflicts between state laws that a court would need to resolve.
- Confront The Recorder, If Known
- If you know who recorded you, consider approaching them directly but non-confrontationally. Ask why they recorded you and what they intend to do with the recording. Clearly state that you’re aware of the recording, express your concerns about it and ask questions to understand their motives.
- Request Deletion
- Ask whoever made the recording to delete it immediately, preferably in your presence. If they refuse, you may need to consider legal action.
Assess Federal and State Consent Laws
In determining if legal action is warranted, it is crucial to understand that consent laws vary state by state. Federal law allows recording of phone calls or conversations if the person recording is a party to the conversation or if at least one party consents and is aware of the recording. Federal law also prohibits one from recording conversations with criminal or tortious intent. Most states have enacted laws that reflect federal law. Fifteen states require all parties to consent to the recording, known as All-Party Consent, while the remaining thirty-five states plus the District of Columbia only require one party’s consent, known as One-Party Consent. In some states, breaking recording consent laws is classified as a misdemeanor, while in others, it is considered a felony. Find your state below to determine which consent law applies while keeping in mind that a court will decide which law applies if there are conflicting state laws.
- All-Party Consent States: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, Vermont, Washington.
- One-Party Consent States: Alabama, Alaska, Arizona, Arkansas, Colorado, District of Columbia, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming.
It is important to note that implied consent laws generally make it legal to record face-to-face interviews when the recording device is in plain view. Additionally, if the parties are put on notice of the recording and choose to continue with the conversation, then it is generally legal to record because the consent of all parties is presumed. However, if the recording of a conversation takes place in the workplace, an employee’s awareness of the recording generally does not constitute implied consent if the employee communicates that they oppose any monitoring.
File a Lawsuit
Penalties for illegally recording someone can include fines and even jail time in some jurisdictions. You could potentially seek damages in the form of monetary compensation through a civil lawsuit if your privacy rights were violated. If the recording was made in a private space where you had a reasonable expectation of privacy, such as your home, workplace or a doctor’s office, you likely have a stronger case. In some cases of illegal recordings, you may even be able to file a criminal complaint. Potential grounds for a lawsuit include:
- Violation of wiretapping laws: The Electronic Communications Privacy Act (“ECPA”) of 1986 protects against the unauthorized interception or recording of electronic communications. Violation penalties can be severe, with federal law imposing fines of up to $250,000 and imprisonment for up to five years for first-time offenders.
- Invasion of privacy: Legal claims exist when someone feels that their privacy has been invaded. These include intrusion on seclusion, public disclosure of private facts, false light and appropriation of name or likeness.
- Intrusion Upon Seclusion: Commonly referred to more generally as “invasion of privacy,” intrusion upon seclusion often occurs within a private location when someone intentionally intrudes into another’s privacy in a highly offensive way.
- Public Disclosure of Private Facts: This type of privacy invasion occurs when someone publishes or discloses the offensive, private affairs of another to a large audience. Although this type of privacy invasion is not accepted in all jurisdictions, some jurisdictions that don’t allow this type of tort may still allow actions to be brought under the tort of intentional infliction of emotional distress.
- False Light: This type of privacy invasion occurs when someone shares information that may be true, but they share the information in a negative way.
- Appropriation of Name or Likeness: This type of privacy invasion occurs when someone publicly uses the name or likeness of another person for their own, personal benefit. If you did not license the right to use your name or likeness, any unauthorized use (which may include a recorded conversation) is considered appropriation.
Conclusion
Knowing your rights and taking proactive measures can help you confidently navigate the complex landscape of recorded conversations. Consider how your privacy was invaded, and speak with a member of our team to better understand your specific rights and the best course of action to take in your situation.
Contributions to this blog by Danielle Rye.
