Vail Daily column: Is it legal to record phone conversations? | VailDaily.com

Vail Daily column: Is it legal to record phone conversations?

A question I am asked with surprising frequency is, “Is it legal to record a telephone conversation?” It seems we have some budding NSA agents out there.

The answer is, “Yes. But no. Well, sorta.”

Before I explain, why would someone want to record a telephone conversation, anyway? Each case is different, but a common circumstance might be in a divorce situation in which conflict runs high and one party or the other wants to prove a point and lock the other party in.

For the record

In another circumstance, a friend and client recently asked me this:

I finally entered the digital age and got my phones over to Voice Over Internet Protocol; so far so good. I noticed the service provider offers an interesting feature of on-demand call recording. If I activate that feature, I can selectively hit a few buttons during the call and start recording the call, with apparently no notification to the caller that I am recording it. That could be both a good and bad thing, as I’ve sometimes had people swear I quoted them as saying something which I know full well that I did not, and this can cause tremendous problems later. Recording a call like that would certainly enable me to prove that I didn’t tell them what they claim I did. I also frequently have conversations with other businesspersons who “forget” the conversation when we’re ready to ink the deal (sometimes, I think, conveniently).

Has the advent of the digital age changed the rights of people to record conversations without giving notice? Makes me wonder how many of the people I talk to every day are recording the call.

I think, too, of a consumer issue I had several years ago, when a lender told me not to make any more house payments because they were going to modify my loan, and if I made a payment it would stop the process. Then, the lender moved to foreclose on me because I had done precisely what had been suggested. Later, when I negotiated a payment to reinstate everything and delivered a check to their lawyer in the amount we had agreed, the lawyer denied any knowledge of the deal I had made with the lender and began a second foreclosure proceeding. I finally got the lender to call off the dogs, but not until the whole episode had caused me a few more gray hairs. Had I had the ability to record those calls, it would have been pure gold. I know a lot of people who have been sucked into the same kinds of traps. In my case, how I would have loved to have sat in that lawyer’s office and play back the recordings, including one when their lawyers screamed at me telling me I was a “loser” and he was “tired of (my) playing games.”

But, I think you told me once during that time that recording a call without the other person’s knowledge was probably deemed wiretapping and at best is inadmissible in a court proceeding. It could also annoy the other party to no end that they were busted by a recording and inhibit future conversations and confidences and casual advice, which for the most part I value greatly, as I can think of many times I’ve received very good off-the-record advice. Of course, the service provider states such recordings should only be used for training purposes and to resolve disputes.

Has the advent of the digital age changed the rights of people to record conversations without giving notice? Makes me wonder how many of the people I talk to every day are recording the call.

Sometimes it might be good to record a conversation or two with my wife as well. She swears I sometimes promise to stop by the store and get certain items and can’t figure out why I allegedly forgot a few of them.

The specifics of recording

My answer was this:

In short, it is okay to record a conversation without notice except:

1) You must be a party to the call. You cannot record a third-party call.

2) The callers must both be within the state of Colorado. Crossing state lines may be a felony.

3) You must not be of certain statuses. For example, an attorney — even when not acting as an attorney — must give notice before recording a call. Bill collectors must also give notice.

See, lawyers can be short, rather than long-winded.

Then I added:

State lines are taken into account as well. In today’s hyper-technological world, even if both callers are physically in Colorado, the call may have spun out into the universe somewhere and bounced around like a pinball in the ether. There could be an argument, I suppose, that even though both callers were within the state, the call itself crossed state lines and therefore, you could have your hands full of a federal problem.

I worked on a Jones Act case once (the law of the open seas) in which a ship-to-shore call was in issue, which created all sorts of interesting problems.

One other thing to consider is that even if recording in the particular circumstance may be legal, it does not necessarily assure that what you have recorded would be admissible in court, when and if you’d like to use it.

So there it is. Can you record a telephone conversation without giving notice to the other party? In Colorado, generally, the answer is yes, so long as you are a party to the conversation, both parties are in-state and you are not prohibited from so doing because of your particular status (say, as a lawyer or a bill collector). Other states have other laws. One other thing to consider is that even if recording in the particular circumstance may be legal, it does not necessarily assure that what you have recorded would be admissible in court, when and if you’d like to use it. That is a whole different kettle of fish which is administered by the rules of evidence. It is worth consideration, too, that the rules of evidence may be subtly or even substantially different depending upon whether you are proceeding in an action in state or federal court.

A final take-home note: Unless notice is expressly given, or you are law enforcement personnel operating under a warrant, you may never record a conversation in which you are not a party. That, to the budding James Bonds among you, is strictly verboten.

Rohn K. Robbins is an attorney who practices in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Reach him at 970-926-4461 or at Robbins@SLBLaw.com.