In family law, I often have clients tell me they have recorded phone conversations with their soon-to-be ex that will surely prove their case. As you may imagine, this “smoking gun” rarely turns out as favorably as expected. If the client’s recorded phone calls occurred between the client and opposing party in Arizona, then there should be no need to further counsel the client as to the practice of recording phone calls (though you may have practical reasons why they should focus their energy on other efforts). However, if you learn that the taped phone calls are occurring with a party across state lines, or that your client is not a party to the conversation at all, then you have a completely different issue at hand, and you will need to advise them of their potential liability under both Federal and State wiretapping laws.
Many states derive their wiretapping laws from the federal wiretapping statutes. The Wire and Electronic Communications Interception and Interception of Oral Communications Act (18 USC §§ 2510 to 2521) governs all interstate calls and includes authority for electronic surveillance. Thus, wiretapping includes both interception of a telephone call via the telephone signal itself, as well as eavesdropping. The Federal law, with certain exceptions, prohibits the interception, use and disclosure of protected communications (see 18 USC § 2511). A notable exception to the interception, use and disclosure of protected communication is the “one party consent” – meaning, generally, that if one party of a conversation (including the person recording who is part of the conversation) is aware of the interception/recording, then there is no violation of the Federal law. Penalties for violating this Federal law include excluding the evidence obtained and criminal conviction and civil damages, among other things.
The applicable Arizona statute, ARS § 13-3005, provides that, with exceptions, “a person is guilty of a class 5 felony who either: 1. Intentionally intercepts a wire or electronic communication to which he is not a party, or aids, authorizes, employs, procures or permits another to so do, without the consent of either a sender or receiver thereof. 2. Intentionally intercepts a conversation or discussion at which he is not present, or aids, authorizes, employs, procures or permits another to so do, without the consent of a party to such conversation or discussion. 3. Intentionally intercepts the deliberations of a jury or aids, authorizes, employs, procures or permits another to so do.” Furthermore, “[e]xcept as provided in sections 13-3012 and 13-3017, a person who intentionally and without lawful authority installs or uses a pen register or trap and trace device on the telephone lines or communications facilities of another person which are utilized for wire or electronic communication is guilty of a class 6 felony.”
The Arizona statute is similar to the Federal law in that someone can lawfully record a conversation so long as one party consents to the conversation. Thirty eight (38) other states (plus the District of Columbia) have adopted similar statutes requiring only one party consent to record conversations; however, twelve states have adopted statutes that generally require all parties to consent to the recording (such as California, Florida and Nevada).
So, what do you do if your client tells you they have recorded phone calls?
First, ask your client if they were part of the conversation. If they were, then the one-party consent was definitely satisfied and so long as the recordings only involved people in Arizona there likely is not a problem with the recordings.
Second, if your client was not part of the conversation, see who else was. For example, perhaps the client tells you that they were not part of the conversation, but that the conversation was between their child and the ex (the other parent). Arizona has held that “If the parent has a good faith, objectively reasonable basis for believing that the recording of a child's telephone conversations is necessary and in the best interest of the minor, the guardian may vicariously consent on behalf of the child to the recording without violating [Federal law]" (emphasis added). Arizona v. Morrison, 203 Ariz. 489, 56. P.3d 63 (2002). The Morrison case was a criminal case involving sexual molestation charges and thus simply touting the recording as necessary for the “best interests of the child” is likely not enough.
But, if your client tells you that they installed a recording device on their spouse’s phone to prove they were cheating, well then, under the Federal law, courts have consistently held that there is no inter- spousal immunity. Thus, it is improper for one spouse to record or intercept phone calls of the other spouse if there is no consent. Wiretapping laws apply even in the marital context.
Third, even if you have one party consent, you need to know where the people being recorded were physically located at the time of the recorded call. Remember that one party consent is the rule for Federal as well as a majority of states, but not all states. If your client recorded someone in California, then you may need to deal with the California statute on recordings which requires all parties to consent.
Fourth, if you have determined that the recording was wrongfully obtained, then be very careful with what you do with it. Remember that the Federal law prohibits the “use” of intercepted communications. Under the Federal law, there is likely no violation for simply listening to the recording, but there could be liability with any effort to introduce or describe the illegally intercepted communication in court.
So next time your clients tells you about that recorded call “that would be GREAT to use in Court,” or asks you if they should record phone calls to help build up their case, remember to ask some important foundational questions first before your case turns into a criminal or federal case...