Wikipedia

Telephone call recording laws

(Redirected from Two party consent)

Telephone call recording laws are legislation enacted in many jurisdictions, such as countries, states, provinces, that regulate the practice of telephone call recording. Call recording or monitoring is permitted or restricted with various levels of privacy protection, law enforcement requirements, anti-fraud measures, or individual party consent.

Australia

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See also: Mass surveillance in Australia

The federal Telecommunications (Interception and Access) Act 1979 and State and Territory listening devices laws may both apply to monitoring or recording of telephone conversations.[1] The general rule is that the call may not be recorded. Section 7 of the Telecommunications (Interception and Access) Act 1979 prohibits intercepting a telephone call. "Interception" is defined in section 6, of which one element is that it is made "without the knowledge of the person making the communication". There are exceptions to these rules in very limited circumstances, including where a warrant applies.

If a call is to be recorded or monitored, an organization must tell the other party at the beginning of the conversation so that it has the chance either to end the call, or to ask to be transferred to another line where monitoring or recording does not take place.[1]

Reasons organizations may monitor or record conversations may include:[1]

  • to protect a person's intent in dealings with the organization
  • to provide a record in the event of a dispute about a transaction
  • to improve customer service.

In the state of Queensland it is not illegal to record a telephone conversation by a party to the conversation.[2]

Canada

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Organizations

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In Canada, organizations subject to the Personal Information Protection and Electronic Documents Act[3] (PIPEDA) must comply with PIPEDA when recording calls.[4]

In order to comply with the PIPEDA, organizations should take the following steps when recording conversations:[4]

  1. The individual must be informed that the conversation is being recorded at the beginning of the call. This can be done by an automated recording or by the customer service representative.[4]
  2. The individual must be advised of the purposes. The organization must be clear about the purposes; an organization should not state that it is recording the conversation for quality assurance purposes if, in fact, the recording will be used for other purposes. Informing the individual of the purposes can be done in a variety of ways—verbally, by pressing a number on the keypad (in the case of automated messages) or with clear messages on monthly statements. (For example: If you have any questions about your bill please call 1-800-XXX-XXXX. Please note your call will be recorded for...) If the individual proceeds knowing the conversation is being recorded and the purpose of the recording, consent is implied.[4]
  3. If the caller objects to the recording, the organization should provide the caller with meaningful alternatives. The alternatives might involve not taping the call; visiting a retail outlet; writing a letter; or, conducting the transaction over the Internet.[4]

Individuals

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An individual may record a call as long as they are one of the participants of the call.[5] The recording can be used as evidence in a lawsuit.[5]

However, it is illegal to record communications that the recording party is not participating in.[5] An illegal recording can lead to a sentence of up to five years in prison. Section 183 (Part VI) of the Criminal Code also outlaws surreptitious recording of communications without consent of one of the intended recipients.[6]

Czech Republic

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Calls and conversations may be recorded by any active participant, with no requirement to make other parties aware of the recording. It is quite restricted how can you use such recording. The main idea is to use it only for protection of your own rights guaranteed by the law. The law dealing with this is NOZ, § 86 and § 88 .

Denmark

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Calls and conversations may be recorded by any active participant, with no requirement to make other parties aware of the recording. But forwarding or playing calls considered private is illegal. The Denmark Data Protection Authority (DPA) ruled on April 11, 2019, that affirmative consent is required when companies record customer telephone calls.[7]

Finland

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In the case of private persons, calls and conversations may be recorded by any active participant. There is no requirement to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws, such as data protection (privacy) legislation, libel laws, laws governing trade and national secrets, and any agreements, such as non-disclosure agreements.[8]

Recording of calls by a company or an employer is subject to data protection legislation and, as a general rule, requires informing the participants prior to recording.[8]

Germany

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Germany is a two-party consent jurisdiction—telephone recording without the consent of the two or, when applicable, more, parties is a criminal offence according to § 201 of the German Criminal Code[9]—violation of the confidentiality of the spoken word. Telephone tapping by authorities has to be approved by a judge. Telephone recording by a private citizen can be allowed in cases of self-defence, § 32 of the German Criminal Code,[10] or Necessity, § 34 of the German Criminal Code.[11] For discussion on lawful interception in Germany please see de:Telekommunikationsüberwachung (German language).

India

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India does not have a specific law which addresses the recording of phone calls.It is not criminal for a person to record a phone call of which they are themselves a participant without consent from the other parties although the recorders may be liable to legal action if the other party considers the action to be a breach of their privacy. However, the recording of phone calls in which the recorders are not themselves participating is illegal and prohibited by Article 21 of the Indian Constitution unless the person recording has prior consent from the participants of the call.[12][13][14]

The Central Government or State Government is empowered to order interception of messages per 12, section 5 of Indian Telegraph Act 1885.[15] Rule 419 and 419A sets out.

Telephone tapping is permitted based on court order only and such permission is granted only if it is required to prevent a major offense involving national security or to gather intelligence on anti-national or terrorist activities.

Though economic offenses/tax evasion were initially covered under the reasons for interception of phones, the same was withdrawn in 1999 by the Government based on a Supreme Court order citing protection to privacy of the individual.

As per Rule 428 of the India telegraphic rules, no person without the sanction of the telegraph authority, use any telephone or cause or suffer it to be used, purposes other than the establishment of local or trunk calls.

The Government of India instructions provide for approved attachments. There is no provision for attachment for recording conversation.

Italy

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According to the Supreme Court of Cassation, recorded conversations are legal and can be used as evidence in court, even if the other party is unaware of being recorded, provided that the recording party takes part of the conversation.[16]

Ireland

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Recording calls is legal and recordings can be used as evidence in court, providing the person recording is a participant to the conversation, or has consent from at least one participant from the conversation.[17]

Latvia

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Calls and conversations by private persons may be recorded by any active participant. There is no requirement in laws to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws.[18]

Netherlands

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Article 139a of Dutch Criminal law states that "He who deliberately uses a technical aid to record a conversation that is being held in a house, a closed room or a courtyard, without being a participant in the conversation and without any instructions from such a participant, is punishable with imprisonment of not more than six months or a fine of the fourth category”.[19] In other words, as long as one is themselves a participant, they are allowed to (discreetly) record the entirety of the conversation. Furthermore, while not explicitly stated, the European General Data Protection Regulation applies to any processing of private conversations that is not ’strictly personal’. Any publication, without explicit consent, is therefore forbidden.

New Zealand

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Recording of phone calls by private persons falls under interception-related provisions of the Crimes Act 1961, which has a general prohibition on the use of interception devices. An exception is made for when the person intercepting the call is a party to the conversation. There is no requirement that both parties be aware of the interception.[20]

The recording of telephone calls however do fall under the purview of Privacy Act. In general, recording of telephone calls related to personal affairs does not contravene Privacy Act, whereas recording for any other purposes would. In particular, it is usually considered unfair to record someone without telling them.[21] It can still be legal to record without consent if public interest in the content of the recording is strong enough to outweigh the privacy interest or confidentiality interest.[22]

Poland

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According to the Polish Penal Code (art. 267), call recording is legal for a private person only when recording person is one of the participants.[23] No consent from the other side is needed then. Similarly to Latvia, the use of recordings, depending on their content, may be subject to various laws.[24][25]

Romania

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Intercepting communications falls under the provisions of the Penal Code and, in the case of electronic communications, under the Telecommunications Act (506/2004). The recording of a conversation by a private member to that conversation is specifically permitted. Nevertheless, while such recordings are legal, making use of them may fall subject to further civil or criminal law. Their admissibility as evidence also depends on the circumstances.[26]

Sweden

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According to the Swedish Penal Code (Brottsbalken) Chapter 4, 8–9 §§, it is illegal to make unauthorized recordings of telephone conversations.[27] A court can grant permission for law enforcement agencies to tap telephone lines. Also, anyone participating in the telephone call may record the conversation — at least one party in the call must be aware of the recording being made. A recording is always admissible as evidence in a court, even if obtained in an illegal manner.

Taiwan

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According to Article 29 of The Communication Security and Surveillance Act of 1999, call recording is legal if the person conducting the surveillance is one of the parties in communication, or has obtained consent from one of the parties in communication, and the conduct is not for illegal purpose.

Turkey

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In Turkey, there are strict conditions for both the act of surveillance as well as the storage of that data, but as long as it is clear enough of what exactly is being used for as well as implementation procedures were legal by authorities, it is deemed as permissible. The subject at hand was suspected for not related criminal investigation therefore the telephone tapping was justified.[citation needed]

United Kingdom

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England and Wales

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The Regulation of Investigatory Powers Act 2000 in general prohibits interception of communications by a third party, with exceptions related to government agencies. A recording made by one party to a phone call or e-mail without notifying the other is not prohibited provided that the recording is for their own use; recording without notification is prohibited where some of the contents of the communication—a phone conversation or an e-mail—are made available to a third party. Businesses may record with the knowledge of their employees, but without notifying the other party, to:

  • provide evidence of a business transaction
  • ensure that a business complies with regulatory procedures
  • see that quality standards or targets are being met
  • protect national security
  • prevent or detect crime
  • investigate the unauthorised use of a telecommunications system
  • secure the effective operation of the telecommunications system

They may monitor without recording phone calls or e-mails that have been received to see whether they are relevant to the business (e.g., to check for business communications addressed to an employee who is away); but such monitoring must be proportional and in accordance with data protection laws and codes of practice.

This summary does not necessarily cover all possible cases. The main legislation which must be complied with is:

Under RIPA unlawful recording or monitoring of communications is a tort, allowing civil action in the courts. There is a summary of applicable rules on the Ofcom website.[31]

Recording is sometimes advised, as in recording business transactions carried out by telephone to provide a record. It is sometimes mandatory; from March 2009 Financial Services Authority rules required firms to record all telephone conversations and electronic communications relating to client orders and the conclusion of transactions in the equity, bond, and derivatives markets.[32] In November 2011 this was extended to cover the recording of mobile phone conversations that related to client orders and transactions by regulated firms.

Scotland

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The situation in Scotland is similar to that in England and Wales, covered by the Regulation of Investigatory Powers (Scotland) Act 2000.[33]

United States

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In Rathbun v. United States, the U.S. Supreme Court ruled in regard to interstate or foreign communication that "the clear inference is that one entitled to receive the communication may use it for his own benefit or have another use it for him. The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone. It has been conceded by those who believe the conduct here violates Section 605 [of the Federal Communication Act] that either party may record the conversation and publish it." See United States v. Polakoff, 113 F. 2d 888, 889.

Federal law requires that at least one party taking part in the call must be notified of the recording (18 U.S.C. § 2511 (2) (d)).

Call recording laws in some U.S. states require only one party to be aware of the recording, while other states generally require both parties to be aware. Several states require that all parties consent when one party wants to record a telephone conversation.[34]

Telephone recordings are governed by federal law and by mainly two types of state laws:

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States that generally require that all parties consent to the recording include:

  • California[35]
  • Connecticut (For electronic recordings only, all parties must be made aware of recordings, with few exceptions.[36] For in-person recordings, the rule is always one party consent.)[37]
  • Delaware[38]
  • Florida[39][citation needed]
  • Hawaii* (in general a one-party state, but requires two-party consent if the recording device is installed in a private place)[37]
  • Illinois[40] (listening to, transmitting, or recording non-electronic private conversations require consent by all parties)[40][41]
  • Maryland[42]
  • Massachusetts[37] (only "secret" recordings are banned, but is the only state without a "public location" exception.[43] Despite having a 1968 law imposing general bans on taping wire and oral communications, it was later ruled to violate the First Amendment in the conditions espoused in a case filed by Project Veritas in 2018.[44])
  • Montana (requires notification only)[45]
  • New Hampshire[46]
  • Oregon* (One party for electronic communications, two party for in-person conversations. Law has been ruled in 2023 to violate the First Amendment in a case filed by Project Veritas.[47])
  • Pennsylvania[48][49]
  • Washington (however, section three of the Washington law states that permission is given if any of the parties announces that they will be recording the call in a reasonable manner if the recording contains that announcement).[50]
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One-party consent states are:[34]

  • Alabama
  • Alaska
  • Arizona
  • Arkansas
  • Colorado
  • Connecticut (for in-person conversations or phone calls recorded by a participant of the conversation)
  • District of Columbia
  • Georgia
  • Hawaii
  • Idaho
  • Illinois (one-party only for parties to electronic conversations or to record law enforcement officers in public)
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Louisiana
  • Maine
  • Michigan* (one-party only if the recording party is a participant in the conversation)
  • Minnesota
  • Mississippi
  • Missouri
  • Nebraska
  • Nevada[51]
  • New Jersey
  • New Mexico
  • New York[52][53]
  • North Carolina
  • North Dakota
  • Ohio
  • Oklahoma
  • Oregon* (one-party for electronic communications, two-party for in-person conversations)
  • Rhode Island (although consent is not required when the recorded party does not have a reason to expect privacy)
  • South Carolina
  • South Dakota (one-party only if the recording party is a participant in the conversation, or has consent of one participant in the conversation)(S.D. Codified Laws § 23A-35A-20 (2012))
  • Tennessee
  • Texas
  • Utah[54][55]
  • Vermont
  • Virginia (two-party consent required to be used in court for civil proceedings, but not criminal cases[56])
  • West Virginia
  • Wisconsin (two-party consent required to be used in court)
  • Wyoming

Some states distinguish between electronic and in-person communication. For example, Illinois and Oregon are a one-party consent states for electronic communication, but require all-party consent for live in-person communication, with a few exceptions.[57]

The California Supreme Court ruled in 2006 that if a caller in a one-party state records a conversation with someone in California, that one-party state caller is subject to the stricter of the laws and must have consent from all callers (cf. Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95[58]). However, non-disclosure recordings by one of the parties can legally be made if the other party is threatening kidnapping, extortion, bribery, human trafficking, or other felony violence. Also included in the exception is misdemeanor obscenity and threats of injury to persons or property via an electronic communication device (usually a telephone) if directed in whole or in part towards a conversation participant or family members.[59]

Following the Illinois Supreme Court's decision in People v. Clark/Melongo on March 20, 2014, which struck down Illinois' two-party consent law, Illinois was a one-party consent state.[60][61] However, the state legislature amended the statute and, as of December 30, 2014, Illinois is once again a two-party consent state for non-electronic communications.[40][41]

The Michigan Court of Appeals ruled in 1982 that participants in a conversation may record a discussion without getting the permission of other participants.[62] The ruling stated that eavesdropping only applies to: "a third party not otherwise involved in the conversation being eavesdropped on". This is because the law uses the wording, "the private discourse of others", rather than the wording, "the private discourse of others or with others".[63] Michigan law is often misinterpreted as requiring the consent of all parties to a conversation.[64] In 2019, a US District Court acknowledged the 1982 Michigan Court of Appeals Case, but predicted the Michigan Supreme Court would decide that participants in a conversation may not record a discussion without the consent of all parties, so ruled that Michigan required consent of all parties, creating a split among different courts.[65] However, in 2021, the US District Court reversed itself by reconsideration, in part due to the Michigan Attorney General asking the court to do so, and resolved the split among the courts by changing its ruling to that Michigan allows a party in a conversation to record a discussion without getting the permission of other participants.[66]

Accepted forms of notification recording by a telephone company

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The Federal Communications Commission defines accepted forms of notification for telephone recording by telephone companies as:[67]

  • prior verbal (oral) or written notification of all parties to the telephone conversation;
  • verbal (oral) notification before the recording is made (this is the most commonly used type);
  • an audible beep tone repeated at regular intervals during the call.

See also

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References

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  1. ^ a b c Office of the Australian Information Commissioner, Advisory privacy guidelines, https://www.oaic.gov.au/agencies-and-organisations/app-guidelines/
  2. ^ "Queensland Legal Aid - Helping Queenslanders with their legal problems". www.legalaid.qld.gov.au. Retrieved 15 May 2019.
  3. ^ Branch, Legislative Services (8 April 2019). "Consolidated federal laws of canada, Personal Information Protection and Electronic Documents Act". laws-lois.justice.gc.ca. Retrieved 15 May 2019.
  4. ^ a b c d e Office of the Privacy Commissioner of Canada. "Guidelines for Recording of Customer Telephone Calls". June 2008. Retrieved September 28, 2017.
  5. ^ a b c Lublin, Daniel (December 2, 2014). "Am I allowed to record conversations at work?". Globe and Mail. Retrieved September 28, 2017.
  6. ^ "Is it legal to record a private conversation? Wiretapping and the one party consent exception to the rule against interception". May 6, 2008. Retrieved September 28, 2017.
  7. ^ "Straffeloven - Bekendtgørelse af straffeloven - retsinformation.dk". www.retsinformation.dk. Retrieved 15 May 2019.
  8. ^ a b "Omien keskustelujen ja puheluiden nauhoittaminen työpaikalla (Data Protection Ombudsman)". 2006. Retrieved 28 September 2017.
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  10. ^ "GERMAN CRIMINAL CODE". www.gesetze-im-internet.de. Retrieved 15 May 2019.
  11. ^ Translation provided by Prof. Dr. Michael Bohlander (13 November 1998). "Sec. 34 of the German Criminal Code". German Criminal Code. Bundesministerium der Justiz und für Verbraucherschutz, Bundesamt für Justiz (Deutschland). Retrieved May 16, 2019.
  12. ^ Goyal, Aman (2014-09-04). "Audio-visual recording of "informed consent" in India: Step towards "understood consent"". Clinical Trials. 11 (5): 605–606. doi:10.1177/1740774514542621. ISSN 1740-7745. PMID 25190028. S2CID 206773605.
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  18. ^ "Fizisko personu datu aizsardzības likums (Personal Data Protection Law)". 2010. Retrieved 28 September 2017.
  19. ^ "Artikel 139a Wetboek van Strafrecht". Retrieved 21 April 2022.
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  24. ^ "Nagrywanie rozmów - kiedy jest legalne?". 21 April 2017. Retrieved 15 May 2019.
  25. ^ "Legalność nagrywania rozmowy. Czy taki materiał może być dowodem w sprawie?". 5 September 2018. Retrieved 15 May 2019.
  26. ^ Zarrin, Shazia; Saxena, Shashi; Arif-ul-Islam (September 2010). "Step-stress Accelerated Life Testing for Exponentiated Weibull Distribution". Safety and Reliability. 30 (3): 5–13. doi:10.1080/09617353.2010.11690911. ISSN 0961-7353. S2CID 124623801.
  27. ^ Riksdagsförvaltningen. "Brottsbalk (1962:700) Svensk författningssamling 1962:1962:700 t.o.m. SFS 2019:34 - Riksdagen". www.riksdagen.se. Retrieved 15 May 2019.
  28. ^ "23". UK Regulation of Investigatory Powers Act 2000. 2000.
  29. ^ Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000. 2000.
  30. ^ Telecommunications (Data Protection and Privacy) Regulations 1999. 1999.
  31. ^ "Other issues - Ofcom". Retrieved 26 May 2020.
  32. ^ "FSA Web site: FSA publishes new rules on telephone recording". FSA. March 3, 2008. Retrieved September 28, 2017.
  33. ^ "Regulation of Investigatory Powers (Scotland) Act 2000". www.legislation.gov.uk. Retrieved 2019-03-29.
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  35. ^ California Penal Code Section 632(a) Retrieved September 28, 2017.
  36. ^ Christopher Reinhart (October 1, 1999). "RECORDING PHONE CALLS". www.cga.ct.gov.
  37. ^ a b c "Recording Phone Calls and Conversations". Digital Media Law Project. May 14, 2014. Retrieved September 28, 2017.
  38. ^ "11 DE Code § 1335 (2022)". Justia Law. Retrieved 2024-03-19.
  39. ^ "Statutes & Constitution :View Statutes : Online Sunshine". www.leg.state.fl.us. Retrieved 15 May 2019.
  40. ^ a b c "Illinois' Newly Amended Eavesdropping Statute Poses Challenges for Employers". Littler Mendelson P.C. 2015-01-27. Retrieved 2018-06-20.
  41. ^ a b "Illinois General Assembly - Illinois Compiled Statutes". www.ilga.gov. Retrieved 2018-06-20.[one-party recording of electronic communications is allowed by 720 ILCS 5/14-2(a)(3)]
  42. ^ "Maryland Courts and Judicial Proceedings Section 10-402". Justia Law. Retrieved 15 May 2019.
  43. ^ "Massachusetts Recording Law". Digital Media Law Project. May 8, 2013. Retrieved September 28, 2017.
  44. ^ "Project Veritas case: Judge Patti B. Staris rules Americans can secretly record public officials". AP NEWS. Associated Press. 10 December 2018. Archived from the original on 10 November 2021.
  45. ^ Montana Legislative Services. "45-8-213. Privacy in communications".
  46. ^ RSA 570-A:2 - NH General Court Archived September 23, 2013, at the Wayback Machine
  47. ^ "PROJECT VERITAS V. SCHMIDT (No.22-35271)" (PDF).
  48. ^ 18 Pa.C.S.A. § 5703
  49. ^ 18 Pa.C.S.A. § 5704(4)
  50. ^ "RCW 9.73.030: Intercepting, recording, or divulging private communication—Consent required—Exceptions". apps.leg.wa.gov. Retrieved 15 May 2019.
  51. ^ "NRS: CHAPTER 200 - CRIMES AGAINST THE PERSON". www.leg.state.nv.us. Retrieved 2018-10-26.
  52. ^ "New York Recording Law". Digital Media Law Project. April 26, 2016. Retrieved September 28, 2017.
  53. ^ N.Y. Penal Law sections 250.00 (1), found at New York Laws. Retrieved April 26, 2016.
  54. ^ "Message from the Reporters Committee for Freedom of the Press on COVID-19". Reporters Committee for Freedom of the Press. 28 August 2012. Retrieved 6 December 2018.
  55. ^ "77-23a-4. Offenses -- Criminal and civil -- Lawful interception". Utah State Legislature. Retrieved March 14, 2020.
  56. ^ "§ 8.01-420.2. Limitation on use of recorded conversations as evidence". Virginia General Assembly. Retrieved 7 October 2024.
  57. ^ "Oregon". Reporters Committee for Freedom of the Press. August 1, 2012. Retrieved September 28, 2017.
  58. ^ California courts document on Kearney v. Salomon Smith Barney, Inc. Archived 2006-08-23 at the Wayback Machine
  59. ^ California Penal Code § 633.5
  60. ^ "People v. Clark". Justia Law. Retrieved 2018-06-20.
  61. ^ "People v. Melongo" (PDF).
  62. ^ "Michigan pol reportedly tried to fake male prostitute scandal to hide relationship". Fox News. August 7, 2015. Archived from the original on August 9, 2015. Retrieved September 28, 2017.
  63. ^ "State of Michigan Court of Appeals" (PDF). publicdocs.courts.mi.gov. August 21, 2003. Retrieved September 28, 2017.
  64. ^ "Michigan Recording Law | Digital Media Law Project". dmlp.org. Retrieved September 28, 2017.
  65. ^ "Michigan v. Project Veritas". Jun 14, 2019. Retrieved November 28, 2023.
  66. ^ "AFT Mich. v. Project Veritas". Nov 8, 2021. Retrieved November 28, 2023.
  67. ^ "Subpart E--Use of Recording Devices by Telephone Companies" (PDF). United States Government Publishing Office. Retrieved September 28, 2017.
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