Omarosa may have done it. The New Yorker reporter Ryan Lizza did it to Anthony Scaramucci. Even Kayne West did it with Taylor Swift: using your cell phone to record a conversation. It’s one way to find out the truth and uncover evidence, but is it the best way?
Omarosa Manigault Newman made headlines in January of 2018 by claiming to have secretly recorded private conversations during her brief time at the White House. Apparently, according to sources close to her, she “loves” to record meetings and other conversations without the other party knowing about it. (She simply uses the voice notes app on the iPhone.) She may have done so at the White House to protect herself from Robert Mueller’s investigation, but it brings up a valid issue: Is it really legal to use your phone to record conversations, whether they are phone calls or in-person meetings?
The law will differ depending on the state. 39 states including Alabama, Georgia, Nebraska, New York, and Texas follow the “one-party consent” rule under which recording phone calls and in-person conversations IS legal if you have the consent of at least one of the parties. This means as long as you personally are in on that call or conversation, you can record it legally. Some states will require that all parties consent to the recording of the conversations. Twelve states have adopted this “two-party consent” rule, which requires all parties to consent to the recording of phone conversations. California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington all ascribe to this law. (Always check the specific state laws because some states will differentiate between electronic and in-person communications; Oregon is a one-party consent state for electronic calls but demands all-party consent when it comes to live in-person communication.)
By federal law, third parties cannot record your phone calls except by way of a warrant obtained by law enforcement. The FCC also regulates the ways that phone companies can record phone calls – notification must be given prior to the start of the phone conversation that the call is being recorded. Because of the Law Enforcement and Phone Privacy Protection Act of 2006 and the Consumer Telephone Records Protection Act of 2006, it is no longer possible to legally purchase cell phone bills or statements.
So knowing all of this, you can record your own conversations if you fall within one of those 38 “one-party consent” states. Perhaps you think hiring a private investigator may help you obtain phone records or conversations of a third party. However, it is also illegal for a private investigator to do so. Such records are private and governed by federal statutes. Fortunately, private investigators have a number of other useful tools that can product similar results and that will also be admissible in court if necessary. They use high-tech camera and video-recording equipment, GPS tracking, and employ unrecognizable field agents if needed to gather information. Video surveillance technology is definitely better than any cell phone recording because it records actual images of the target, providing the most definitive proof available. PIs are hired specifically for their knowledge of the legal components of their surveillance, and thus are best suited to conducting private investigations.