We often get asked if it is okay to record a conversation in Utah. The answer is more complicated that you may think. For example, if you are on the phone in Utah, but the person you’re speaking to is in California, you will need to know California law, too.
First, you need to look at Utah’s Interception of Communications Act, which is found in Utah Code § 77-23a-4. If you are not a party to a conversation, and you record that conversation without permission, you could be prosecuted criminally. Further, you cannot ask another person to do the “dirty work” for you, and if you know a communication was illegally intercepted and recorded, you cannot use it, or even pass it along.
The Utah law covers phone conversations and any electronic communication such as an email or text message. Of course, the police can get permission to intercept communications. Further, if the entire conversation is taking place within the boundaries of Utah (all the people participating in the conversation are in Utah), it is generally legal to record a conversation as long as you are one of the people participating (unless you are invading their right to privacy!). However, you cannot get up and leave and still have the recorder going – that would be illegal eavesdropping (wiretapping).
Utah has civil and criminal penalties for intercepting communications, but they pale in comparison to what federal law (18 U.S. Code § 2511) can do to you: hit you with a felony and a $10,000 penalty to be paid to everybody whom you recorded, plus making you pay all their attorney fees.
Beware – Think Before You Record
In Omaha, Nebraska ordered a woman and her father to pay $120,000 for putting a recording device inside a teddy bear. Here is what the Court said (case 8:09CV02):
“This case arose out of a custody dispute between Plaintiff William Duane (“Duke”) Lewton and Defendant Dianna Divingnzzo (“Dianna”) over custody of their minor child. Shortly after the state court granted Duke the right to have unsupervised visits with [the child], Dianna inserted a recording device inside [the child’s] teddy bear and secretly recorded conversations during [the child’s] visits with her father.
“Dianna provided the recordings to her father, Sam Divingnzzo, who then transcribed the recordings. Dianna ultimately provided the tape recordings and transcripts to Defendant William Bianco (“Bianco”), her attorney in the custody case. Bianco generally discussed the existence of the recordings with his law partner, Defendant Christopher Perrone (“Perrone”).
“Bianco also disclosed the materials to the state court judge presiding over the custody dispute and Duke’s attorney. Plaintiffs subsequently brought this suit against the Divingnzzos, Bianco, Perrone and Bianco’s law firm, Bianco, Perrone & Stroh, LLC, alleging violations of state and federal wire-tapping laws and state invasion of privacy claims.
“By order dated February 18, 2011, this court found that the Divingnzzos and Bianco violated [the “Wiretap Act”). (Filing 166.) The court assessed statutory damages against the Divingnzzos in the amount of $120,000. Punitive damages were not awarded. The court declined to assess any damages against Bianco because he “did not solicit or advise the Divingnzzos to intercept the plaintiffs’ oral communications. While he disclosed the illegally-obtained materials to advance his client’s position in the Custody Case, the court did not consider the materials.
“The other recipients returned the materials unread or maintained the confidentiality of the communications.” The court also concluded that “Christopher Perrone, and the law firm of Bianco, Perrone & Stroh, LLC, did not violate the Wiretap Act in any respect.” The court declined to exercise jurisdiction over Plaintiffs’ state law claims.
Plaintiffs were also awarded attorney’s fees in the amount of $68,710.50 and costs in the amount of $6,217.12 against Defendants Dianna Divingnzzo and Sam Divingnzzo, for a total award of $74,927.62.
So, what if a person calls you from California (a state that typically requires the permission of all parties before a recording can legally place), can you record that INCOMING call? Well, the California Supreme Court has said, “no,” but rulings from other jurisdictions disagree. Here is what that California ruling put in a footnote:
The prior cases involved the application of the law of four jurisdictions: Florida, Massachusetts, New York, and Texas, although not all of the cases analyzed the issue under choice-of-law principles.
In Florida, an intermediate state appellate court held that Florida law—which, like California law, prohibits the recording of a telephone call without the consent of all parties—applied and rendered unlawful the recording in Georgia of a telephone call between the defendant in Georgia and the plaintiff in Florida. (Koch v. Kimball (Fla.Ct.App.1998) 710 So.2d 5.).
In Massachusetts, a number of federal district court decisions applying Massachusetts law ruled that the law of the state in which the person is doing the recording should apply, and therefore rejected actions brought by Massachusetts residents (whose law — like California law — requires the consent of all parties) against defendants who recorded the calls in states where the consent of only one party is required. (MacNeill Engineering Co. v. Trisport, Ltd. (D.Mass.1999) 59 F.Supp.2d 199, 202; Pendell v. AMS/Oil, Inc (D.Mass.1986) 1986 WL 5286, 1986 U.S.Dist. Lexis 26089.)
In New York, a federal district court applying New York law held that where the party whose conversation was secretly recorded was located in a state that permitted the recording of a conversation with the consent of one party, that party could not maintain an action even though the defendant who recorded the conversation was located in a state that required the consent of all parties to the conversation. (Wehringer v. Brannigan (S.D.N.Y.1990) 1990 WL 200563, 1990 U.S. Dist. Lexis 16447; see also Locke v. Aston (2006) 31 A.D.3d 33, 814 N.Y.S.2d 38.)
In Texas, a federal district court applying Texas’s “most significant relationship” choice-of-law test concluded that Texas law (which required the consent of only one party to the conversation), rather than California law, should apply when a company employee in Texas recorded telephone conversations with other company employees in California. (Becker v. Computer Sciences Corp. (S.D.Tex.1982) 541 F.Supp. 694, 703–705.)
Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 130, 137 P.3d 914, 938 (2006)
If you are thinking about recording a conversation, consult with an attorney. There are also invasion of privacy issues that you must be aware of, which are not addressed in this blog.
Call us at 801-651-1512. We can help.