MissHim said:
I currently live in Washington and my step-son lives in Minnesota. My husband is allowed to speak with him once a week when it is convienent for his mother. Recently, we learned that the phone conversations were being recorded but my husband was never told about this. We were not worried because he never says anything wrong on the phone but it has come to my attention that she can cut and paste these conversations easily, making them appear sinister.
MN law allows conversations to be recorded if ONE person knows about it and since she is one, it is okay. The question is, I was told that telephone conversations are governed by laws of the state in which they originate. If this is true, it would depend on Washington's law, which I would also need to research. Which state's laws are inter-state phone calls governed by?
My response:
In light of the differing state laws governing electronic recording of conversations between private parties, callers are advised to err on the side of caution when recording or disclosing an interstate telephone call. The safest strategy is to assume that the stricter state law will apply.
For example, a person located in the District of Columbia who records a telephone conversation without the consent of a party located in Maryland would not violate District of Columbia law, but could be liable under Maryland law. A court located in the District of Columbia may apply Maryland law, depending on its "conflict of laws" rules. Therefore, an aggrieved party may choose to file suit in either jurisdiction, depending on which law is more favorable to the party's claim.
In one case, a New York trial court was asked to apply the Pennsylvania wiretap law -- which requires consent of all parties -- to a call placed by a prostitute in Pennsylvania to a man in New York. Unlike the Pennsylvania wiretap statute, the New York and federal statutes require the consent of only one party. The call was recorded with the woman's consent by reporters for The Globe, a national tabloid newspaper. The court ruled that the law of the state where the injury occurred, New York, should apply. (Krauss v. Globe International)
In another case involving Pennsylvania law, four employees of the Times Leader, a newspaper in Wilkes-Barre, were arrested after they printed a transcript of a telephone conversation between a columnist in Pennsylvania and a murder suspect living in Virginia that was recorded without the suspect's permission. The Virginia and federal statutes allow one party to record a conversation, while Pennsylvania, as discussed above, requires the consent of all parties. The man asked prosecutors to charge the journalists under the Pennsylvania law. The court eventually dismissed the charges against the newspaper staff -- but on the unrelated ground that the suspect had no expectation of privacy during his telephone interview with the columnist. (Pennsylvania v. Duncan)
Federal law may apply when the conversation is between parties who are in different states, although it is unsettled whether a court will hold in a given case that federal law "pre-empts" state law. In Duncan, the newspaper argued that the federal law should pre-empt the state statutes, because the telephone call crossed state lines, placing it under federal jurisdiction. However, in that case, the court did not address the pre-emption issue. Moreover, as noted above, either state may choose to enforce its own laws.
Minnesota
Minn. Stat. § 626A.02 (1999): It is legal for a person to record a wire, oral or electronic communication if that person is a party to the communication, or if one of the parties has consented to the recording -- so long as no criminal or tortious intent accompanies the recording. Unlawful recordings, or disclosure of their contents if there is knowledge or reason to know of the illegal acquisition, carry maximum penalties of imprisonment for five years and fines of $20,000. In addition, civil liability for violations statutorily can include three times the amount of actual damages, as well as punitive damages, litigation costs and attorney fees. Minn. Stat. § 626A.13 (1999).
Under state court interpretations, when an employee of a local television station secretly videotaped a veterinarian treating a pet in a private home for an investigative news report, the station did not violate the wiretapping law because its employee was a party to the communication and it had no tortious intent. Regardless of the fact that allegations of tortious trespass existed, the court found the station's intent was commercial, not tortious. Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 402 (Minn. Ct. App. 1995), cert. denied, 1998 Minn. LEXIS 77 (Minn. Jan. 28, 1998).
Washington
Wash. Rev. Code § 9.73.030 (1999): All parties generally must consent to the interception or recording of any private communication, whether conducted by telephone, telegraph, radio or face-to-face, to comply with state law. The all-party consent requirement can be satisfied if "one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted." In addition, if the conversation is to be recorded, the requisite announcement must be recorded as well.
Moreover, an employee of a news organization engaged in newsgathering is deemed to have the requisite consent to record and divulge the contents of conversations "if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers." Anyone speaking to an employee of a news organization who has been deemed to have given consent cannot withdraw that consent after the communication has been made. Wash. Rev. Code § 9.73.030(4) (1999).
Any violation is a misdemeanor. Wash. Rev. Code § 9.73.080 (1999). Civil liability is expressly authorized for actual damages, including mental pain and suffering, or $100 per day of violation -- but no more than $1,000 total based on this daily calculation. Attorney fees and litigation costs can be recovered also. Wash. Rev. Code § 9.73.060 (1999).
IAAL
