Secretly recording a conversation can constitute a criminal offense under federal law. Under Title 18, Section 2511 of the United States Code, it is a felony to record a conversation unless at least one party to the conversation consents. The crime is called eavesdropping, and a person found guilty can be sentenced to 5 years in prison and fined $250,000.
The statute reaches beyond conversations. It is against the law to use any device to intercept wire, oral, or electronic communications, as well. For example, recording a phone conversation or copying computer data such as email is eavesdropping, and subject to criminal penalties.
18 USC 2511 applies to face-to-face conversations, telephone conversations (including cell phones), email, instant messaging, text messages, phone records, voicemail, data saved on a server, and any other electronic communication.
A conversation between two people is protected except where it occurs in public. In public, the law says that neither party to the conversation has a reasonable expectation of privacy, and therefore, the conversation is not protected.
It is not a federal offense to record a conversation where the person doing so is a party to it. See 18 USC 2511(1)(d).
Nonetheless, some states have statutes that go beyond federal law and make it a criminal offense to record a conversation even if one person agrees to it. For example, in Illinois, it is a Class 4 felony offense where a participant to a conversation records it unless the other person consents. See 720 ILCS 5/14-2 (eavesdropping statute).
The federal offense of wiretapping or electronic eavesdropping prohibits attempting to illegally intercept or causing another to illegally intercept wire, oral, or electronic communications.
Disclosing information gained from an illegal interception is a federal offense where the person knows or has reason to know that it the information was gained illegally.
Eavesdropping is legal only when authorized by a court order. In order to engage in wiretapping, law enforcement officials must apply to a federal magistrate for a warrant. The warrant is valid for only 30 days, but can be extended under some circumstances.
The information gained from a court-authorized wiretapping cannot be disseminated. If a person gains information pursuant to a court-ordered wiretap that is part of a criminal investigation and discloses it with the intention of obstructing the investigation, he can be charged with eavesdropping.
Accessing stored computer data, such as email, or another’s telephone records unlawfully is eavesdropping. The phone records are protected because they constitute communication between two or more people who did not consent to the interception.
A trap and trace device or pen register is a device that records incoming and outgoing call sources. Using these devices is a federal offense.
The contents of the wiretap cannot be used in federal court (unless it was obtained with a warrant). The recording is considered inadmissible. Even if the recording proves that a person was engaged in or attempting to commit a crime or violate someone’s rights, it cannot be used in court.
