Can Conversations on Construction Projects be Recorded Absent the Consent of all Participants?

Verbal communications surrounding construction projects take many shapes and forms.  People communicate face to face, screen to screen, phone to phone, and combinations thereof.  Many clients inquire as to the circumstances under which such conversations may be recorded and by whom?  

In the old days, recording devices were large, clunky, noisy, and recorded conversations onto magnetic tapes with limited storage space. When a tape recorder was plunked down onto a conference room table, everyone knew their words were being recorded. Today, recording devices are small, silent, easily hidden, and have access to unlimited storage space. Everyone with a cell phone has the ability to make high grade voice recordings (including video) without the knowledge or consent of others.   Thankfully, the laws governing the recording of conversations generally apply without regard to the medium(s) by which the conversation takes place.

The circumstances under which verbal communications may be recorded and by whom is derived from a mixture of both Federal and State laws.  Under Federal statute, 18 U.S.C. §2511, only one participant to a conversation need consent to the recording.  A consenting participant need not actively speak, but their presence must be made known.  Any consenting participant may record the conversation themselves or authorize another non-participant to record the conversation.  No matter how many people are involved in the conversation, only one participant  need consent in order for the conversation to be lawfully recorded under Federal law. 

While the federal government may legislate laws governing interstate communications, States themselves may do so with respect to intrastate communications.   Various States have therefore enacted laws that seek to modify Federal law within their boundaries.  (www.justia.com/50-state-surveys/recording-phone-calls-and-conversations/).  Thirty-five States, known as 1-party States,  mirror Federal law and only require one consenting participant in order to record oral conversations.  The remaining fifteen States,  known as 2-party States, require all participants to consent to make the recording lawful. When State laws conflict, the laws applicable in the State where the recording is made generally govern.  Nonetheless, problems often arise when a conversation recorded in a 1-party State is sought to be enforced in a 2-party State.  

Many States modify Federal law with respect to the form of consent,  usage of the recording, or penalties for violations of the applicable State law. For example. Connecticut requires either written consent of all parties or consent at the start of the conversation.  Under California law, consent can be implied, if notice is given, including audible beeps, and the parties proceed without objection.   New Mexico is a 1-party State for face to face communications but a 2-party State with respect to all other forms of communication.  Oregon is exactly the opposite.  Some States look to whether the non-consenting participant had a reasonable expectation of privacy.  Other States look to whether the consenting party had a criminal or tortious intent when making the recording.  At least one State looks to whether the recording is made in the context of a criminal prosecution versus a civil lawsuit.  All States impose penalties for violations of their recording statutes, whether criminal, civil, ot both.

The takeaways are simple.  Familiarize yourself with the laws of the State where the recording is to be made, as well as where the recording will be sought to be enforced.  One client has sought to overcome such hurdles by inserting a clause in every contract they execute that the other party consents (including their agents and employees) to recordings of all communications relating to the contracts, the work, and the project.  Other clients ask all participants at the start of all conversations to disclose whether any recordings are being made and if so by whom and for what purpose?  The recording laws enacted by the States as well as the approaches taken by clients vary considerably.  As with all other business decisions, the key is knowledge of the issues in play.