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. So, you can’t use the recording to commit fraud or blackmail, both of which carry criminal and civil liability.
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.
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
(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 because Joe was defending himself against a drunk person who was in a black-out and threatening Joe with a knife. 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.