What is the law regarding recording a phone conversation between states?

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What is the law regarding recording a phone conversation between states?

My son is in a custody action with his ex; he lives in MA; she lives out of state. In the state that she resides in, it is legal to record a conversation if only 1 party know about it. My son recorded a phone conversation between he and his wife. The attorney down there said that he can face legal action here for the recording even though it will only be used in her state. Is that true? Are there any federal issues?

Asked on December 5, 2010 under Criminal Law, Massachusetts

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Federal law allows recording of phone calls and other electronic communications with the consent of at least 1 party to the call ("1 party consent"). A majority of the states and territories have adopted wiretapping statutes based on the federal law.  Although 12 states, including MA, require that under most circumstances all parties to a conversation give their consent that it be recorded ("all party consent").  Accordingly, your son's actions violated MA law.

However, he wants to use evidence that is illegal in MA in another state's court.  As a general rule, it is safer to assume that the stricter all-party consent law will apply where either the caller or receiver is in an all-party state.  Accordingly, I'm afraid that his wife's attorney is correct.


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