The One-Party Consent Law in New York
New York is considered a "one-party consent" state, which means that at least one person involved in a communication must consent to the recording in order for the recording to be legal. New York Consolidated Laws stated that "a person may intercept a telephone or telegraph communication when he is a party to the communication or one of the parties to the communication has given such prior consent to the interception." The key element of this law is that "at least one" of the parties to the communication must give consent in order for the recording to be legal.
For example, if you are speaking on the phone with someone—whether they be a friend, family member, or coworker—and then choose to record the conversation without their consent, it would be considered illegal, as in most cases you would not be a party to the phone call . If you do not have the consent of all of the parties being recorded, it is recommended that you avoid recording altogether.
When it comes to conversations that take place in-person, the same rule applies. A conversation between two people can be legally recorded under the one-party consent requirement, but if you’re holding a conversation in a public place and you want to record it, it’s a good idea to ensure that the person being recorded is informed that recording devices are nearby.
The bottom line is that you should always ask for permission first, even if you think it’s going to be okay. Since the law states that only one party has to consent to the recording, you are legally able to record a conversation or phone call if you are one of the parties to that conversation. That said, for your own protection, it is still best practice to obtain consent before recording any conversation or phone call.
Consent Exceptions to New York Wiretapping Laws
While New York is a one-party consent state, there are a number of exceptions where consent to record a conversation is not necessary. For example, in FBI v. Rothenberg, the U.S. Court of Appeals held that the one-party consent requirement does not apply when (1) the person being recorded is a party to a civil action, and (2) the subject of the recorded conversation relates directly to that action. In that case, an attorney for the Appellees in a bankruptcy action in the Eastern District of New York was attempting to contact Appellant Rothenberg to obtain a consent to record that conversation. Appellant refused to execute a Consent and Acknowledgment of Consent to Record Telephone Conversation and advised Appellees’ counsel that he was not required to do so under NYS law. Appellant also directed Appellees’ counsel that he would hang up on any telephone call that was recorded without his consent.
Appellees filed an application in the bankruptcy court for an emergency order preventing Rothenberg from ending telephone conversations with Appellees’ counsel who sought to arrange a deposition. The Bankruptcy Court denied the application but the U.S. District Court for the Eastern District of New York issued a preliminary injunction mandating Rothenberg to comply with NYS law and Appellant appealed to the U.S. Court of Appeals.
The Court of Appeals held that since confidentiality was a privilege extended to the attorney-client relationship under Rule 26(b), the one-party consent provision of the statute did not apply and Rothenberg could not record a conversation relating to the action without the consent of the party seeking to maintain that privilege.
Punishment for Illegal Recording
Under New York law, the penalties for an unlawful eavesdropping can be severe.
Civil Penalties for Eavesdropping
In a civil action, the amount of damages is the greater of:
• $500 or
• $100 a day for each day of violation, or
• three times the applicable damages.
Additionally, statutory damages in a civil action may not exceed $10,000. Also note, that in a civil action the prevailing party may recover reasonable attorney’s fees.
Criminal Penalties for Eavesdropping
Eavesdropping (under New York Penal Law § 250.00) (unlawfully overhearing) can be class A misdemeanor or a class E felony. If the unlawful eavesdropping is by the use of a mechanical overhearing device and is a part of a police investigation, it becomes a class E felony. It is also a class E felony if committed with the intent to commit any other crime or tort.
Also, witness tampering (under N.Y. Penal Law § 215.70) is a class E felony if reasonable suspicion exists that the witness tampering was a result of unlawful eavesdropping.
As described in the eavesdropping statute:
"A person may not be convicted of an offense under this article solely because, with an intent specified in the statute, he has an opportunity to overhear a conversation lawfully unless such person has engaged in eavesdropping or otherwise surreptitiously overheard the conversation."
Using Recording Devices in Public and Private Spaces
Making recordings without consent of the parties is not permitted in situations where there is a reasonable expectation of privacy. That standard is not always easy to apply. The New York Penal Law, Section 250.00(2), provides that electronic eavesdropping encompasses the overhearing or recording of a conversation without consent in addition to the overhearing of wire or oral communication. It applies whether the overhearing or recording is directly or through the use of any electric, mechanical, or other device.
Different standards apply to recording in public, where a reasonable expectation of privacy may not exist.
However, in public places, recording may be permitted. For example, in a case where a complaint was lodged with the New York State Health Department and the filing party sought to record her conversations with the Health Department’s inspector, the Appellate Division of the New York Supreme Court held in Matter of Elias L. v New York State Dept. of Health, 136 AD3d 45 [2015]:
"Contrary to petitioners’ contention, the tape recording at issue here was not prohibited by Public Health Law § 12-b, which governs inspections of healthcare facilities. The allegations in the complaint were matters of public concern (see Public Health Law § 601), and petitioner further averred that she had spoken with Health Department officials ‘in the office manifold times’ and that the inspector had ‘had the opportunity to see and review the [v]oluminous and very detailed written records and documentation which was kept of patient care and treatment procedures . ‘ This evidence, along with the lack of any claim by the Health Department that petitioner’s presence and/or recording interfered with the property inspection, was sufficient to demonstrate that the inspector was aware that petitioner was present and ‘did not expect to be free from [petitioner’s] scrutiny when he entered the [facility] to perform his official duties’ (US v White, 978 F2d 812, 816 [DC Cir 1992]; cf. People v Smith, 48 AD3d 1135, 1137-1138 [2008], lv denied 10 NY3d 963 [2009])."
Yet the Court noted that this recording could not be used in later action.
On the other hand, if you are recording in a place where there is a reasonable expectation of privacy, such as a person’s home or an enclosed building, you should assume that you need permission to record. "The fact that a party to the conversation is able to hear the recording device does not preclude application of the privacy statute since the device was not hidden by such person. Recording conversations in one’s own home is deemed a private conversation even when carried out in the presence of an individual (e.g., houseguest) who is not a participant in the conversation." People v. Stokes, 89 NY2d 959 [1997].
Technology and the Recording Law
Technological advancements such as smartphones with high quality video capabilities or hidden recording devices that are easily concealed have outpaced the development and evolution of the law. While most people recognize the dichotomy between verbal conversations and electronic communications like e-mail or text messages, there is no clear distinction from a legal standpoint (except for one issue to be discussed below). In order to have a meaningful discussion about the application of wiretapping laws to modern society, one must first be armed with the distinctions between verbal and electronic (i.e., text message and e-mail) communications.
"Verbal" is defined as, "perceived by the ear." Thus, a verbal conversation is any communication comprised of words that is heard by a listener. Since New York is a "one-party" consent state, verbal communications can be lawfully recorded with the consent of just one person to the communication. "Electronic communications" are interpreted from a technological standpoint. Text messages may be sent and received by mobile devices, while e-mails originate as hard copies written and later scanned by an electronic reader, faxed to another location, and then printed again. The e-mails themselves are electronic, whereas the medium of exchange—i.e., mail, fax, computer—constitute the hardware of communication. In some jurisdictions, at least one of the parties to the communication must consent to the recording in order for the act to be lawful, regardless of the medium of communication. However, New York has not wholly adopted this approach.
E-mails in particular have been a thorny area of law for years. An e-mail is (and always will be, even if the technology changes) a communication sent from one person via a server to another. The parties communicate through their e-mail addresses, which are analogous to a mailing address. The most common example of the law applying the "one-party" rule to e-mails comes up in the telemarketing context. In those cases, courts have held that a person may record a telephone call from a telemarketer because the recording does not constitute unlawful wiretap of a telephone conversation, only eavesdropping and/or recording without the telemarketer’s knowledge. Courts have ruled that a third-party and/or e-mail service provider (as opposed to the individual who sent the message) has the authority to consent to the communication being intercepted and/or recorded. Since most consumers must typically consent to the terms of the service agreement before engaging in the use of the service, it is said that consumers have given their consent for several types of recordings (including telemarketing e-mails, texts, or calls). In one often-cited case, the court stated, "The recipients of e-mails cannot be heard to claim that they had any expectation of privacy to the contrary." In that case, the court found there was no violation of the statute or right of privacy based on the plaintiff’s consent, as constituted by the terms/conditions of the service agreement.
Nevertheless, the court in eBay v. Taobao Holding Ltd. recognized the evolving nature of technology. There, the court stated, "As the technology evolves, its relationship to traditional ideas of privacy is changing as well." The court went on to conclude that even though the parties to e-mails may have had consent to the "recording" of the messages, their consent did not extend to "transmission," as e-mails are sent on the internet, as opposed to the telephone network (where one could legitimately expect a call from a telemarketer).
Importantly, this case did not involve a recorded phone conversation (which, as stated above, is considered lawful in New York if one party consents to the recording and/or eavesdropping). It only addressed the act of transmission (an act in which one party does not give their consent). This is just one illustrative example of the highly contentious and rapidly evolving area of law that applies to the application of wiretap statutes to both traditional and modern technology.
Tips for Recording Legally
These tips are designed to help you make sure your recording is legal:
- It’s a good idea to give notice if you plan to record a conversation and especially if you plan to record other people. For example, if you’re going to tape an interview of a witness, send them a letter that includes information that the interview will be recorded.
- Recordings of conversations that you have in your home or where you work may be okay, but they are still risky. Many employers have strict policies against employee recording other employees and you could end up in hot water for violating policy.
- In some situations, it may be better to make notes and then follow up with a letter after the fact, explaining what you discussed and asking for any clarification needed. You may make a note to return if you find you can’t remember the detail after the fact.
- When you record a meeting , get the group’s consent that the meeting is taking place. It’s not enough to just press record, but you should also make sure everyone knows they are being recorded. (Again, this is a good way to avoid problems, but it may not be the best option-keep reading. We recommend that you not record anything without permission.)
- If you do have permission to record, it’s a good idea to take the extra time to edit the recording afterwards so that sensitive information won’t get out.
- Don’t record things that you have been explicitly told are confidential, unless you’re a lawyer and the information relates to taking on the case or billing, or unless you’ve obtained permission to record the conversation.
- Don’t record lawyer-client conversations unless you first talk with your client about this and your client is okay with you recording them.