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by Nerd Thuggery awakens. on February 27th, 2009
The best way to answer this, without getting into questions about the specifics of your situation, is this:
When determining the legality of an intercepted phone conversation in which both parties are in different states, then BOTH state laws must be satisfied, as well as federal law.
So, you basically have three sets of law to satisfy. Generally, federal law follows a 1-party approach.
by edward on April 16th, 2009
i am an attorney in CT and i have a case that is SIMILAR to the one presented. someone in florida LISTENED (not recorded) in on a conference call by gaining access to the conference call code and calling in. they said nothing, but stole business secrets. we know this by virtue of looking at the conference call bill. we had two extra people listening in who were my clients competitors. this has caused my client harm.
so the question is, can someone listen in using a phone? technically, its not wire tapping which by definition does not include the use of telephones to listen in.
finally, its not a matter of state law superseding federal law or vice versa. its a matter of which laws were violated. you can easily violate the law of more than one jurisdiction. it could be that the laws of 2 states and federal law were all violated, or some combination thereof.
by edward on April 16th, 2009
i am an attorney in CT and i have a case that is SIMILAR to the one presented. someone in florida LISTENED (not recorded) in on a conference call by gaining access to the conference call code and calling in. they said nothing, but stole business secrets. we know this by virtue of looking at the conference call bill. we had two extra people listening in who were my clients competitors. this has caused my client harm.
so the question is, can someone listen in using a phone? technically, its not wire tapping which by definition does not include the use of telephones to listen in.
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You're reading Is it legal for someone in Florida (a two-party consent state) to tape record a phone conversation with someone outside of the state if the other person is not in a two-party consent state?
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Comments
This answer is incorrect. Federal law would supersede state law in this case, so only the federal law would apply.
by Anonymous on February 28th, 2009
Sorry, "anonymous," this is not the case with recordings of interstate communications. In fact, the issue is still unsettled whether Federal law pre-empts state law in these situations, and I have read cases where "2-party" states have required that their laws be enforced in these situations, effectively superceding the Federal law.
Because the matter has yet to be settled as to which law should supercede, I will always recommend that all possible laws be respected and followed.
I therefore firmly stand behind my original answer: If you want your call recording to remain legal, be sure that all three laws are respected and followed.
Federal law does NOT always supercede State law.
by Nerd Thuggery awakens. on February 28th, 2009
First, I never said that federal law always supersedes state law. However, in this case federal law does preempt state law. Second, you have to be careful as to which law you are referring to. Each state has many laws dealing with recording. Only some of those laws have federal counterparts, and are therefore preempted by federal law. For example, a two-party state may not allow a recording made without the consent of both parties to be admitted into evidence. This is an independent state law that would not be affected by federal law.
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And I certainly agree that this issue is far from settled. For example, I practice in a state which has held that the laws of the more restrictive state must be followed. However, most jurisdictions have held otherwise. Therefore, since the question does not give specific facts and jurisdictions, the best answer that can be provided is the predominant rule.
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Of course, those jurisdictions that have held that the more restrictive states rules take precedence are most often the states that have more restrictive rules. Thus, a more exact answer would come down to which court has standing. For example, if you called a person in a one-party consent state from a two-party consent state, and were recorded without knowledge, how would you ever come before a court in the two-party consent state?
by Anonymous on February 28th, 2009