Lawyers get asked a bunch of questions at cocktail parties. Surprisingly often “someone told me” is the basis for some confidently held misinformation.“Can I record a phone call” is one of those questions.
The short answer is “yes, if you’re a party to the phone call.”
The longer answer – there’s always a longer answer — is, unless you intend to use the recording for an otherwise-illegal purpose or for a purpose under which you could be held civilly liable.
The short answer is “yes, if you’re a party to the phone call.” The longer answer is you can’t use the recording to commit fraud or blackmail.
So, you can’t use the recording to commit fraud or blackmail, both of which carry criminal and civil liability.
PLEASE NOTE: I CANNOT give advice on whether such a recording would be admissible in court. The variables include what kind of legal proceeding (criminal, civil, small claims), Rules of Evidence (including hearsay, best evidence, foundation, prejudice / probative value), and many more issues unique to each case.
The Law:
Here is how the Court of Appeals explained the law (with a bunch of legal citations removed):
“Minnesota’s wiretapping statutes are nearly identical to the federal wiretapping statutes. Compare Minn.Stat. § 626A.02, subd. 1 (1992), with 18 U.S.C. § 2511(1) (1992). The statutes provide that any person who intentionally intercepts an oral communication is subject to liability. . . . A party to the conversation is exempted from liability, however, unless the communication is intercepted for the purpose of committing any criminal or tortious act. . . .” Copeland v. Hubbard Broadcasting, Inc., 526 NW 2d 402 (Minn. Ct. App. 1995).
Furthermore, “The burden of proof is on the party attempting to show that the communication was intercepted for criminal or tortious purposes,” which is no small thing. Someone who wants to hold you liable for such a recording has to prove why you did it, which could mean proving what you were thinking. Which is hard.
Put simply: it is illegal to record a conversation unless you are a party to it, or one of the parties consents to your recording it.
Here’s the complex statute:
626A.02 Interception And Disclosure Of Wire, Electronic, Or Oral Communications Prohibited.
Subdivision 1. Offenses.
Except as otherwise specifically provided in this chapter any person who:
a. intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, electronic, or oral communication;
…
c. intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic, or oral communication in violation of this subdivision; or
Subd. 2.Exemptions.
…
(d) It is not unlawful under this chapter for a person not acting under color of law to intercept a wire, electronic, or oral 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 for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state.
Put simply: it is illegal to record a conversation unless you are a party to it, or one of the parties consents to your recording it.
A Story with a Lesson:
That doesn’t mean you should record willy-nilly.
I had a client, Joe, who was being charged with a criminal assault. We were ready to try the case. The person identified as the victim, Gwen, approached Joe a few days before the trial. Knowing that Gwen was up to no good, Joe turned on a voice recorder on his phone.
Gwen offered to not show up for trial, which would have meant the charges against Joe would be dropped, if Joe would give Gwen $5,000.00. Joe wisely refused and brought the recording to me, his attorney.
I played the recording, as the rules say I must, for the prosecutor, Peter, to show him that he had no case and that Gwen was the wrongdoer.
Peter threatened on the basis of the recording to charge Joe with felony witness tampering unless Joe plead guilty to the original charge.
Peter was abusing his discretion as a prosecutor, but Joe decided that since a conviction would result in prison time, he would plead to the original assault charge.
It is legal to record a conversation you are part of unless you intend to use the recording for wrongful purposes. But it may not be wise.
In Minnesota is it legal for an employee to record a conversation with a manager and play it for other employees or HR? What if the audio has been edited? Is there a way to prove the audio has been edited?
Dee, Recording the conversation is legal. Whether or not it is legal to play it for others implicates many other issues that would have to be addressed one at a time.
What if you are not a part of the conversation but plan to use recording only if you were the subject?
Linda, According to MN law, you can record the conversation if you are on the conversation. There is on specific statute about being the subject of a telephone call.
I recorded a altercation on my cell phone between 2 men 1 of which was a security guard employed by the non-profit I work for. it occurred outside in a common area. I had taken the video and audio to show my supervisor, but before I was able to was contacted by HR and now am facing reprimand. is this right?
Your employer may be able to punish you for violating their policies. I only am saying that it is not ILLEGAL to record a conversation you’re a part of.
I voice recorded my conversation with my supervisor for my own safety and rights was that ok to record
It is always legal in Minnesota to record a conversation you are part of. I cannot speak to whether that recording would be admissible in any court or arbitration proceeding without more information.
I have a friend who’s mother is very abusive and will call her and say things like “I’m going to rip out your insides and bathe in your blood in front of your children” my friend has an ofp but every time she calls the cops they tell her she has no evidence of the phone call can she legally record these calls
Yes.
Can a company terminate an employee in Minnesota that had planted a recording device where the employee was fully aware and admitted to knowing that the company policy prohibited audio or video recording on site. In addition, the company is located on airport grounds.
Jenny, The only information I can provide is that one cannot be criminally prosecuted (in Minnesota) for recording a conversation he or she is a party to. I make no representations about employment law, admissibility in court hearings, or how a private employer may react. There are too many issues to address.
I secretly recorded a conversation between me and John at his home. John said many things about Jennifer, who is friend of mine, that she is a cheater to her husband. Can I give the recording to Jennifer to do something about John? Also, will I be liable for the given the recording to Jennifer?
As always, I cannot give an opinion about the consequences of how you USE a recording. My legal opinion is limited to the fact that it is legal to record it if you are part of the conversation.
i have a friend in a faith based rehab. I am pretty sure they record phone calls. I never gave permission for this and neither did my friend. I have examined their application form, and no where does it state or ask for signed permission from my friend, their client, In other words, said friend never gave permission for them to record phone calls, and it does not state this anywhere on the application they signed asking for this specific permission…..My question is then, Is it illegal for the rehab place to record any phone conversations of their client, and myself and listen to us talk, whether live or recorded…..?
Based on the information you gave me, the rehab facility would NOT be allowed to record conversations. The rule (in Minnesota) is that you can record a conversation you are part of. However, I would not be surprised to find a release that Friend signed giving them permission.
If you have two neighbors in an apartment complex who scream so loud that you can perfectly hear them from the opposite side of your apartment is that conversation still considered private? Would you be able to record the arguments from your own apartment in order to file a complaint with the police?
Millie, if you can hear their conversation, they have no reasonable expectation of privacy. You can certainly observe and record anything that is (essentially) public. I would discourage you from contacting the police, though (ever). Take this up with your landlord.
I have a recording of my ex admitting to drinking and becoming violent/negligent around my child, would it be admissible in court regarding parenting time? What are reasons that a recording is considered admissible or not?
It is impossible to give a quick answer to whether a recording would be admissible in Court. It depends on the the of matter (family, criminal, civil) and the procedural status (ex parte hearing, evidentiary hearing, trial) as well as the Rules of Evidence, including, but not limited to, Foundation, Hearsay, Relevance, Availability of Witness, Prejudice versus Probability.
I live in Wisconsin and want to record a conversation with a surgeon I’ll be having over a delayed diagnosis/possible lawsuit. The delayed diagnosis led to an extensive surgery and so many other things….would it be ok to record this and do you think it would be admissible?
I can never speak to admissibility without being involved in some cause of action. There are evidentiary questions that would be complicated to analyze even if we knew what it was being used for and are impossible to analyze if we don’t.
I also cannot speak to Wisconsin law, at all. Good luck with your surgery.
Is it legal for a homeowner in MN to video and audio record a private conversation that the homeowner was not party to? There was an understanding of privacy (the homeowner made clear that the video and audio recording would not turn on and record if I was in the home, I have walked through the room unclothed. I was allowed in the home by the homeowner, now the recording, which I was unaware of, is being used against me. Do I have any legal rights as one party of the conversation? The other person involved was speaking via mobile phone. The homeowner never disclosed that he was recording us. Thank you.
That is NOT legal.
If I have a sit down meeting with a CPS worker, am I legal to record the conversation? If so, does the recording deviceneed to be visible or can it be hidden?
It is always legal to record a conversation in Minnesota if you are part of the conversation, concealed or open. No promises about such a recording being useable in court, if that’s your next question.
Can you tell me if the following scenario would be legal in Minnesota:
A secret recording made during an academic exam in a health care training program, in which two examiners sit in one room and, via a two-way mirror, observe the student and an actor who plays a patient. The examiners can see and hear the student and the actor but the reverse is not true. The recording is made on a smartphone belonging to the student. The student didn’t intend to record the examiners in their station, but turned the smartphone on and placed it in an outer pocket of his bag before entering the building, so he could secretly record the pre-exam instructions given by the examiners, so as to later show evidence that the exam was rigged (which it was, since this was a retaliation situation). The student planned to place the bag in a locker before the actual exam. However, immediately after the instructions, one of the examiners told the student NOT to put the bag in a locker but instead to place it in the examiner’s station for safer keeping. The examiner did not know there was a phone secretly recording in the bag, and there was no opportunity for the student to turn off the phone without being seen. So it ended up recording not only the exam, which the student was clearly a part of and had a right to record, but also, the “private” conversation between the two examiners that the student could not hear behind the two-way mirror. The examiners’ conversation confirms that there was retaliation occurring. It also confirms that the student didn’t intentionally record the examiners alone in their station, but only did so because he was told to place his bag there.
Would this recording be legal or not? And if it’s not, but the student gives it to the press, can the press legally use it? And if it’s illegal and the press DOES use it, could the student go to jail? And if so, for how long and what type of jail?
A recording was made of an interview at our school between a student and an attorney. The interview was regarding harassment accusations made against a school district educator by a student and both parties were aware of the recording. When the student requested a copy of the recording, they were told “No” by the attorney. Do both parties have rights to the recording?
It is legal to record a conversation of which you are a part. What happens with that recording is controlled by too many variables for me to make a broad generalization.
Are there minimum statutory damages in MN for violations in civil court? E.g., for each violation in which the defendant is found responsible, they must pay X dollars in statutory damages + actual damages + plaintiffs attorney fees?
Minnesota has no such law.
Why do eployer polocies supercede law when it comes to recording?
I understand its going on on or in their property. How is company property off limits to law? Is my home treated the same way? No, if a fight occured in or on my property and someone recorded it it could be used by the police right there on the spot…now can i have my own homeplace like work place policy and have all visitors sign it and it too supercede law? Hope that makes sense!
Holly, people can record what they participate in or what they observe in public. Also, an employer can monitor what happens at work. What purposes those recordings can be used for varies. Feel free to call me if you think something has happened that violates your rights.
What if I record a phone call I have with a person in a documentary film I’m making. And I include part of the phone call in the movie? And they were unaware they were being recorded during my call with them.
I will tell you without equivocation that if you are on the phone call, you can record it without fear of civil or criminal liability. Whether any other or subsequent use of the recording could expose you to civil or criminal liability depends on far too many variables for me to express an opinion without much more information. Feel free to call.
BSE
I may be entering a custody battle near term, have been experiencing emotional abuse (and am a child survivor of abuse) via a possible covert narcissist (couples/individual thetapy pending) and have seen signs the same is happening to my 3yo.
I highly suspet my child is being bribed, manipulated, or experiencing parent alienation, or worse in my absence. Am I permitted to make secret reordings of conversations within my home when I am absent with the intent to show abusive patterns in court if indeed such patterns can be shown in the recordings?
I am not married to childs mother, nor have a ROP on file.
You can make the recording if you are a participant in the conversation you are recording, but whether you can use it in court is a different issue that requires analysis of the type of hearing and the applicable rules of evidence.
As an executor for my father’s estate (two heirs: me and my sister), I made a video and an audio recording each of some erratic and threatening statements by my sister. Likely cause of her hostility: she had gotten my father to loan her more than $100,000, which at the time was almost a third of his retirement savings. Fortunately there turned out to be a signed and dated promissory note with his will and other papers.
My sister, who doesn’t have a job – other than gambling in Las Vegas and posting on social media – hung out at my father’s house while I went back to work after my father died, and she told neighbors, family friends and relatives that I was attacking her, being ‘harsh’ and taking property. They believed her. The estate had to spend thousands in legal bills to: 1) determine what amount she owed on the loan (a few, erratic payments over six years and a 4% interest charge do not make for easy math, thus an accountant had to do that); 2) to recover items she looted from my father’s home in the weeks after his death when she lived in his home with her boyfriend, 3) to secure payment for property and estate taxes; and, 4) for the estate’s attorney to respond to frequent and bizarre communication from my sister’s attorney. My sister did not appear to understand the legal concept of an estate and her attorney either didn’t counsel her or tried and failed to do so. In the end, my sister tried to take me to court for racking up too many estate bills! (I had even offered mediation early on just to try to end it, even if I had to lose my share of my father’s personal items from his house, sentimental items – his death was very unexpected and I was extremely sad.)
After months of this I decided to just settle because I was exhausted from her attacks and I really needed to take care of my health and to concentrate on my real, full time job. Anyway, the truth is not out there and once in a blue moon I fantasize about posting those audio and video recordings on the internet so people can finally see what was really going on and hear her, first hand, attack me for what she told others I was doing to her. Is that legal? Sometimes it feels like there’s no justice.
Making a recording is fine if you were recording a conversation you were part of, but publicizing it may or may not be.
If I co-own and live in a property and want to sell, but the co-owner who wants to buy me out demands that I must walk away from all equity, can I record that conversation? The conversation is meant to be a meeting to discuss terms, but it’s happening in the house.
As long as one person who is party to the conversation agrees to recording (including the person doing the recording if he is a participant), you can record it.
Rural MN here. My 5 year old son was abused at public school. It was traumatic for him. The social worker at school and principal apologized profusely for what happened and promised a report would be filed with protective services to investigate the staff member who did it. There’s video evidence but they’ve refused to let me see it, claiming data privacy laws. Despite it only having my son and the abuser in the video. I contacted local CPS the day of the incident as well to report it to them and was told, “cps only investigates family units. They do not investigate anyone outside of the home.” And to let the school to do their own internal investigation.
Three months later now and I attempted to follow up as no officer nor board of education has contacted me or my five year old to find out what happened. I recorded the call with the principal without his knowledge. He admitted fault again but after much back and forth over my concern of not being contacted and mandated reporters not reporting, he assured me that a police report was indeed filed.
I then called the local CPS and spoke with a supervisor. I recorded this conversation as well without her knowledge. I referenced mn statute that says mandated reporters and cps must investigate claims both against family and any establishment providing temporary care for a child (teachers, coaches, day cares. Etc..). The supervisor stated that she could, “see how I’d think they could investigate or report the abuse based on the information I read but it’s not true and they do not investigate school staff.”.
After that I contacted the sheriff’s department, I explained that I was looking for a report filed for my son on Jan 19 (day of incident and day the principal claimed a report was made). They searched through their reports for the last year as well as in record keeping and found no such report. I asked to speak with a deputy myself to file a report and they were more than obliging. The officer as well stated that he looked through his system and there is no evidence of a call made or report filed concerning what happened with my son. He went up to the school shortly after to speak with the principal and that was the last I heard from the cop.
Are these recordings legal for me to have for evidence for when I can find a lawyer willing to take on a school district and government agency. And as proof multiple mandated reporters failed and denied their responsibility to report the incident? Am I entitled to the video footage they have of the event?
Someone who participates in a conversation can record it. How it is used depends on too many variables for me to advise on without reviewing the file.