Are secret audio recordings legal?

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Are secret audio recordings legal?

My students signed a form produced by my college prohibiting them from recording lectures without expressed permission. A student made a recording of a conversation between myself and another, different student without permission from either party in the conversation. An excerpt of that recording is being used in a punitive action against me, the college faculty member.

Asked on November 11, 2017 under Personal Injury, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

In your state, so long as one party to, or participant in, a conversation, consents to the recording, it is legal--that's under the law generally; we'll address the form you mention below. Therefore, if A and B are talking, if A records the conversation without B's consent or even knowledge, that is legal: A is a party to the conversation, and by definition, if A recorded it, A "consented" to the recording. Hence, the requirement for the consent of one party was met.
However, if you were lecturing and/or talking to student B (you are person A in this example), and the student who recorded you, person C, was not a participant in this converstation or was not giving the lecture with you, then C violated the law, since in ths case, a conversation was recorded without the consent of one of the parties to the converation. In your state, recording a conversation without at least the consent of one party to the conversation is a crime under Texas Penal Code Secton 16.02, and the person making the recording could be reported to the police and potentially face criminal liability. It is simply not legal to secretly record in your state unless you are participant in the conversation.
Furthermore, you mention a signed form. That is essentially a contract between, or part of the contract between, students and the university. If the student has breached it, the university could sue the student for breach and/or likely suspend, expel, or take other similar action against him or her. The university could also use the breach as grounds to not consider the recording's contents, if it wants.
Note that the above factors, however, do not prevent the university from taking cognizance of the recording's contents and taking action against you based on it: they just mean that the student who recorded could him- or herself face liabilty or penalites: criminal, civil, or in terms of their college standing. The penalties that person could face does not prevent the recording from being used--it just exposes the recorder to sanctions.


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