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Clandestine Conversations—Is it legal to record a conversation?

Many individuals have the need or the desire to record telephone calls or in person meetings that concern their business or personal dealings. With technological advancements, that is easier and cheaper to do now more than it has ever been in the past. In many instances the individual wanting to record does not necessarily want to broadcast that information as the in individual or group that they are in may not want to be recorded or might act differently if they are. However, people often wonder whether it is legal to do so if the other individual or individuals do not know that they are being recorded.

Like many other states, in Indiana, the law requires one-party consent to record, which can include the person doing the recording. Specifically, pursuant to Indiana Code Section 35-31.5-2-176, an individual has the right to record or disclose the contents of an electronic or telephonic communication that they are a party to or if one of the parties has given prior consent to the recording of the communications. As recently as last month, the Indiana Court of Appeals found that “recording of a communication with the consent of either the sender or the receiver is not an interception, as defined by the Indiana Wiretap Act." Wynne v. Burris, No. 41A04-1710-SC-2363, 2018 WL 2945539, at *3 (Ind. Ct. App. June 13, 2018) (citing Ind. Code § 35–31.5–2–176); see also Edwards v. State, 862 N.E.2d 1254, 1261–62 (Ind. Ct. App. 2007) (noting that the recipient of jail telephone call consented to recording by accepting the call after hearing admonishment that call may be recorded or monitored), trans. denied. As the Wynne case demonstrates, this law impacts both civil and criminal litigation.

Indiana’s law is similar to its federal counterpart, 18 U.S.C. § 2511(2)(2), which states that “[i]t shall not be unlawful under this chapter for a person not acting under color of state law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted to commit any criminal or tortious act in violation of the Constitution or laws of the U.S. or of any State.” However, there are exceptions that apply to the federal law including those concerning law enforcement, telephone communication providers, FCC, Surveillance, and others.

Certainly, it is not always clear when the rule or the exceptions apply and what circumstances they apply under. And while many states follow the federal one party consent rule, not all states do. For example, California and Florida require the consent of all parties. Other states, like Connecticut, have different rules that apply under criminal than apply under civil law. Consequently, if you are traveling or recording a call from another state, it would behoove a person to be aware of the laws in the other state or states as you could be subjecting yourself to possible civil or criminal penalties. Similarly, it is not entirely clear what constitutes consent. That is, in a state where consent is required, do you have to expressly ask for consent or can it be implied? Is a sign or a recording that calls or conversations may be recorded enough to establish consent? If you are an individual that has a need or a desire to records conversations, you should do so while being fully informed as to the implications of doing so.

If you have questions or concerns about your rights, contact the attorneys at Keffer Barnhart LLP today. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized history. Act now and contact us today at 1-800-NOT-GUILTY or (317) 857-0160.