Federal and state laws (statutes) govern the secret or surreptitious recording of oral communications, telephonic communications (by telephone), and other communications—also known as electronic surveillance, eavesdropping, or wiretapping.
A person’s legal right to record a conversation or communication generally depends on the law of the state in which the person is located when they record the conversation—unless the federal statute provides greater privacy protection—in which case it will govern the right to record the conversation or communication. And some state statutes make it a violation (often civil and criminal) to listen to or record the conversation of a person located in the state—regardless of where the person listening to or recording the call is located.
Federal Electronic Communications Privacy Act of 1986 (ECPA)
The Electronic Communications Privacy Act and the Stored Wire Electronic Communications Act are commonly referred together as the Electronic Communications Privacy Act (ECPA) of 1986. These laws are located in the United States Code (statutes) at 18 U.S.C. §2510 to 18 U.S.C. §2523.
The ECPA updated the Federal Wiretap Act of 1968, which addressed interception of conversations using "hard" telephone lines but did not apply to interception of computer and other digital and electronic communications.
Several subsequent pieces of legislation, including The USA PATRIOT Act, clarify and update the ECPA to keep pace with the evolution of new communications technologies and methods, including easing restrictions on law enforcement access to stored communications in some cases.
The ECPA, as amended, protects wire, oral, and electronic communications while those communications are being made, are in transit, and when they are stored on computers. The Act applies to email, telephone conversations, and data stored electronically.
Specific Provisions of the ECPA
The ECPA Has Three Titles
Title I
Title I of the ECPA, which is often referred to as the Wiretap Act, prohibits the intentional actual or attempted interception, use, disclosure, or procurement of any other person to intercept or endeavor to intercept any wire, oral, or electronic communication. Title I also prohibits the use of illegally obtained communications as evidence. 18 U.S.C. §2515.
But Title I provides exceptions for operators and service providers for uses "in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service" and for "persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act (FISA) of 1978." 18 U.S.C. §2511.
Title I provides procedures for federal, state, and other government officers to obtain judicial authorization for intercepting such communications and regulates the use and disclosure of information obtained through authorized wiretapping. 18 U.S.C. §§2516-2518.
A judge may issue a warrant authorizing interception of communications for up to 30 days upon a showing of probable cause that the interception will reveal evidence that an individual is committing, has committed, or is about to commit a "particular offense" listed in Section 2516. 18 U.S.C. §2518.
Another important exception to the Wiretap Act is if one person who is a party to the conversation consents to the recording, it is legal under federal law. Thus, a person who is not a party to the conversation may not place a listening device to intercept a conversation, but a person who is a party to the conversation may “wear a wire” or have a recording device that records the conversation.
Title II
Title II of the ECPA, which is called the Stored Communications Act (SCA), protects the privacy of the contents of files stored by service providers and of records held about the subscriber by service providers, such as subscriber name, billing records, or IP addresses. 18 U.S.C. §§2701-12.
Title III
Title III of the ECPA, which addresses pen register and trap and trace devices, requires government entities to obtain a court order authorizing the installation and use of a pen register (a device that captures the dialed numbers and related information to which outgoing calls or communications are made by the subject) and/or a trap and trace (a device that captures the numbers and related information from which incoming calls and communications coming to the subject have originated). 18 U.S.C. §§3121-3127.
No actual communications are intercepted by a pen register or trap and trace. The authorization order can be issued on the basis of certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by the applicant’s agency.
Amendments to the ECPA
The ECPA was significantly amended by the Communications Assistance to Law Enforcement Act (CALEA) in 1994; the USA PATRIOT Act in 2001; the USA PATRIOT Improvement and Reauthorization Act of 2005; and the FISA Amendments Act of 2008. Other acts have made specific amendments of lesser significance.
Reasonable Expectation of Privacy
The ECPA and similar state laws only protect the interception or recording of conversations in which the parties to the conversation have a reasonable expectation of privacy. This means that two people having a conversation at a coffee shop do not have a reasonable expectation of privacy if a person sitting near them overhears or records their conversation. But persons to a conversation generally have a reasonable expectation of privacy sufficient to prohibit a person from surreptitiously placing a listening or recording device to amplify or record a conversation.
State Laws
Laws regarding listening to, intercepting, or recording communications vary from state to state, and generally fall into one of two categories: (1) one-party consent laws and (2) all-party consent laws. There are additional nuances and exceptions to some of these state laws.
In states with one-party consent laws, if one person who is a party to the conversation consents to the recording, it is legal under federal law. Thus, a person who is not a party to the conversation may not place a listening device to intercept a conversation, but a person who is a party to the conversation may “wear a wire” or use a recording device that records the conversation.
In states with two-party consent laws, all parties to the conversation must agree to the conversation being listened to by another person or recorded for the listening or recording to be legal under state law.
Getting Consent to Listen or Record
Laws vary from state to state (and under federal law), but consent for another person to listen to a communication (conversation) or for the communication to be recorded generally may be secured by:
• prior spoken (also known as verbal or oral) or written notification that the communication may be listened to or recorded (in an employee handbook for example, notifying employees that their employer may listen to or record certain communications); or
• spoken (also known as verbal or oral) notification before the recording that will later be listened to is made—this method is commonly used by businesses that record customer service and other telephone communications for quality assurance and training purposes, for example; or
• an audible beep tone repeated at regular intervals during the call, which is designed to inform all parties to the call that it is being recorded.
Criminal Penalties
A person who violates the federal Wiretap Act may face a sentence of up to five years in prison and a fine of $500, or both. See 18 U.S.C. §2511. And some state laws (statutes) that prohibit listening to or recording of communications (also known as electronic surveillance, eavesdropping, or wiretapping) are included in the state’s criminal statutes (in the penal code, for example) and include criminal penalties for violations.
Civil Penalties
A person or entity who violates a state law that prohibits listening to or recording communications without the required consent (one-party or two-party) may also be subject to civil lawsuits for money damages.
In Texas, the law regarding the recording of communications aligns with the federal one-party consent rule, which means that as long as one party to the conversation consents to the recording, it is legal to do so. This is in accordance with the Federal Electronic Communications Privacy Act (ECPA) of 1986, which also allows one-party consent recording. The ECPA protects wire, oral, and electronic communications during transmission and when stored on computers, with specific provisions under its three titles addressing interception, storage, and pen register and trap and trace devices. Texas Penal Code § 16.02 prohibits the interception or recording of wire, oral, or electronic communications without the consent of at least one party, except as provided by law. Violations of these laws can result in both criminal and civil penalties. It's important to note that the ECPA and Texas law only protect communications where there is a reasonable expectation of privacy. Therefore, recording a conversation in a public place where parties do not expect privacy may not be protected under these laws. Additionally, federal law and Texas law may differ in how they treat the interception of communications, and the stricter law typically prevails.
