There are any number of reasons a person might want to record a phone conversation. Maybe you’re worried your employer is going to fire you, even though you’ve signed a contract or belong to a union. Maybe you’re going through a divorce and are trying to build evidence for why you should be the one to get child custody. Maybe you think your auto insurance company is trying to deny your car accident claim without good cause. Whatever the scenario may be, it’s important to understand when it is (and isn’t) legal to record phone conversations in Utah. Salt Lake City criminal defense lawyer Darwin Overson explores the legality of recording phone conversations.
The Utah Interception of Communications Act
Utah’s laws about recording phone conversations are consolidated under the Interception of Communications Act. With some exceptions, which we will discuss shortly, Utah Code § 77-23a-4 makes it a criminal offense to intentionally or knowingly:
- Intercept or have another person intercept “any wire, electronic, or oral communication.” This broad definition includes not only phone conversations, but also emails, instant messaging, text messaging, radio communications, and even private conversations conducted in person (“oral communications”).
- Use, try to use, or get another person to use any type of device or gadget meant to intercept any wire, electronic, or oral communication.
- Tell or try to tell another person about the contents of an intercepted conversation, if you know (or have good reason to know) that the conversation was intercepted.
- Use or try to use the contents of an intercepted conversation, if you know (or have good reason to know) that the conversation was intercepted.
This means that the Act covers not only phone conversations, but any conversation or electronic communication. That would cover things like phone calls, Skype or other VoIP calls, text, e-mail, faxes, and even in-person conversations. Electronic communications can be in any form, be it writing, sound, images, etc, so a court could even conclude that something like Emojis are considered “communication.”
One-Party Notification: When Recording a Conversation is Legal
Before we discuss the penalties for an offense, it’s important to note there are times when the above laws don’t apply. Indeed, the statute makes numerous exceptions. For instance, it is perfectly legal to record a conversation:
- If the person is acting “under color of law,” meaning he or she has been granted authority by a federal, state, or local agency, in which case he or she is allowed to intercept a phone conversation as long as one of the following statements are true:
- That person is “a party to the communication,” i.e. personally involved in the conversation.
- “One of the parties to the communication has given prior consent” to the recording of the conversation.
- If the person is not acting under color of law, meaning they are making the recording for personal, private reasons which have nothing to do with governmental authority, in which case the above exceptions also apply, with the added rule that the recording cannot be used for any criminal purpose (e.g. planning a theft).
In short, it is legal to record a conversation as long as you are one of the people participating. However, you cannot eavesdrop on conversations between other people, unless at least one party has given you approval in advance.
The requirement that at least one party grant approval for interception is called one-party notification or one-party consent. Most states follow one-party notification laws. By comparison, a small minority of states follow all-party notification laws, which require that every person involved in the conversation consent to being recorded.
More Information on Recording and Wiretapping Laws
Laws that prohibit or limit your ability to record phone calls also generally prohibit the interception of other electronic messages, and sometimes even recording or disclosing in-person conversations. These laws are designed to protect the ability to freely speak and converse with others without the fear that what you say may end up in court or in the press.
Without laws prohibiting recording of phone calls or conversations, there would be a risk that we could be recorded in any conversation. If any conversation could be recorded, and potentially used in court, then it would be like being under oath at all times.
Utah’s Interception of Communications Act has, aside from the criminal punishments, a built-in remedy against people who illegally record others. There is a civil action created in the Act so that victims of illegal wiretapping or conversation recording can sue the recorder. Since consent by any party to the conversation is okay, this action would be used against third parties listening-in on conversations they are not a part of. But, the Act specifically says you cannot sue a communications provider for recording a conversation in accordance with these rules (e.g. a phone company recording your call by police request with a valid warrant). There is another civil action created in the Act, but it is only for the State to sue the offender if the offender is using a satellite or radio to violate certain FCC rules.
Just because obtaining the recorded information from a phone call or conversation may be illegal, usually, there needs to be a separate law to prohibit the use of that recording in court. In fact, the Utah Act does bar the use of any recordings or information taken in violation of the Act. That means that information illegally recorded by a third party without your consent cannot be used against you in court.
Wiretapping Laws by State
Phone calls often go across state lines, so it may be important to know the laws of other states as well as Utah if you are a Utah resident.
First, there is a Federal law on point that governs the entire United States. The federal law is similar to the Utah law and is codified under 18 USC § 2511. § 2511(2)(d) provides a one-party rule, meaning only one party to the communications needs to consent to recording or intercepting.
Since many states have one-party consent laws, they do not interfere with the federal statute. Other states with two-party consent make it illegal to record without all parties’ consent. In those states, recording may be legal according to the federal government, but it is still a state crime.
The following states have one-party consent laws for phone recordings, similar to the federal rule (including Utah):
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- Washington D.C.
- West Virginia
The following states require the consent of all parties to a conversation to record it. This is usually called “two-party consent” on the assumption that a conversation is only between two people, but actually requires the consent of all parties.
- New Hampshire
The other states have strange rules or allow one-party consent in some situations, but require two-party consent in others.
- Colorado requires that a third party listening-in or recording has at least one party’s permission.
- Connecticut requires that recording needs consent of all parties before the conversation, but merely listening-in only requires one party’s consent.
- Michigan only requires all parties to consent for a third party, but a participant may record with one-party consent.
- Nevada allows one-party consent to record a conversation in-person, but recording a phone conversation requires all parties to consent.
- Oregon allows one-party consent for electronic messages, but all parties must consent to recording an in-person conversation.
- Vermont has no statute on point.
- Wisconsin is a one-party consent state, but has limitations on when the conversation can be used as evidence.
Other Exceptions to Phone Recording Laws
The statute makes an additional exception for phone company employees, who are allowed to intercept conversations in order to trace a call’s location if the call recipient claims they are being threatened or harassed by the caller. This is the only reason for which phone company employees are permitted to intercept conversations.
On a similar note, phone company employees, landlords, and other individuals are permitted to “provide information, facilities, or technical assistance to persons authorized by law to intercept [conversations] or to conduct electronic surveillance” if they have already received the appropriate authorization from a court order, attorney general, assistant attorney general, county attorney, or district attorney.
Finally, the statute also makes an exception for intercepting communications which are already public in nature — for example, a public radio station which anyone could pick up in their car.
If none of these exceptions apply, and you record a conversation illegally, the consequences can be severe. State law generally makes this offense a third degree felony, for which offenders are subject to fines up to $5,000 and five years in prison. Depending on the exact nature of the communication, this offense can also be graded as a Class A misdemeanor Class B misdemeanor, respectively subject to a $2,500 fine and one year in jail, or a $1,000 fine and six months in jail.
Let Our Utah Criminal Defense Attorneys Fight for You
If someone you love has been arrested in Utah, it’s important to contact an experienced criminal defense attorney right away. To arrange for a free and private legal consultation, call the law offices of Overson Law LLC at (801) 758-2287 today.