Built-in recorders make it really easy to turn our phones into recording devices. But should we do it, and what are the legal rules for New Yorkers?
THE CITY’s journalists deal with these questions every day. Reporters sometimes record conversations to make sure we’re quoting our sources accurately — and in case there’s a dispute later, to prove we have the receipts.
For other New Yorkers, recording conversations can be useful in everyday life, and more people are recording their conversations, according to legal experts.
It could be useful to back up a conversation you have about your next apartment lease, or to simply better remember complicated information, like instructions from doctors or the specifics of a parent-teacher conference.
In one-party consent states (more on that below), “It’s definitely something we are seeing people use in their daily lives when they are speaking to their landlord, or someone on the street,” said Deanna Paul, a New York-based attorney with Walden Macht & Haran.
We spoke with legal experts about the law around recording. As always, individual cases may be complicated and if you’re in doubt, consult a lawyer. That said, here’s a guide on the basics.
The 411 on recording phone calls and convos
New York is a “one-party consent” state, which means that you can record conversations if you are physically in the state and are taking part in the conversation, or if you have permission from one of the parties in the conversation. This applies to both phone calls and in-person conversations.
So, let’s say you want to record a conversation taking place in New York with your job’s supervisor, or record a tough conversation with a roommate — all you need is your own consent, legal experts said.
It does not matter how many people are in the conversation; if one person consents to the recording, the law says it is okay.
“It’s pretty straightforward,” said Andres Munoz, litigation partner from Romano Law. “As long as one person consents to recording a call, you’re not committing a crime.”
What happens when more than one state is involved?
New York is among the majority of states that have adopted one-party consent laws. But in other states, you don’t hold all the power.
Eleven states require two-party consent. They are: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pensylvannia and Washington.
Despite the words “two-party,” this phrase actually means that everyone in the conversation must give permission to be recorded – even if there are more than two people involved.
So beware if you’re calling someone in another state. If you record them without their permission and it turns out they are in a state which requires two-party consent, the recording could be in legally murky territory.
In those situations, how the law is applied is decided by the courts on a case-by-case basis, according to Justin Harrison, senior policy counsel at New York Civil Liberties Union.
“It is up to the courts and it’s going to depend on the state,” he said.
Bear in mind, “in another state” means physically taking a call from another state. If you’re calling a phone with an area code from another state, but that person is taking the call from within New York state, the one-party consent rules still apply.
What if I don’t know the state in which one of the parties is located?
Even if you are in a one-party consent state, but you’re calling someone and don’t know exactly where they’re located, it’s best to err on the side of caution and always ask for their permission. They might be in a two-party consent state.
Can you record conversations you’re not a part of?
Though New York is a one-party state for in-person and phone conversations, the law does not allow you to go out recording every conversation you hear.
Sorry, eavesdroppers: It’s illegal to record conversations you are not a part of in New York.
The law also says that you cannot leave your phone in another room to record other people’s conversations or wiretap phones to record phone calls in which you are not taking part.
However, there is one exception, which is where it can get a bit complicated: You can record conversations where there would be no reasonable expectation of privacy.
This means, for example, if people are talking loudly in a public place — such as a city street or public plaza — where others can easily overhear them, the participants do not have a reasonable expectation of privacy and therefore the conversation can be recorded, law experts say.
Expectations of privacy differ between audio and video recordings. With regards to video recording in public, your expectation of privacy is “almost zero,” according to Harrison from NYCLU. With audio recordings, the law is a bit more nuanced.
“If you are loudly getting into an argument [in public] with someone else, can I record that? Absolutely,” said Harrison from NYCLU.
But if you are in someone’s home or the subjects are chatting softly in the corner of a bar, they may have a reasonable expectation of privacy.
“If you’re having a quiet conversation with somebody in the corner of a subway car, can I point a directional microphone at you? No, that’s probably an invasion of privacy,” Harrison added.
But each case is considered individually, and the court will look at all the circumstances in a situation to determine whether it would be reasonable to expect privacy.
What about recording the police — is that legal?
When it comes to law enforcement, the law provides special considerations.
In 2020, New York passed the Right to Monitor Act which gave individuals the right to record on-duty law enforcement officers. While it is mostly concerned with video, the act also applies to audio recordings of law enforcement, experts say. The law allows individuals to record police officers in both public and private spaces as long as the officers are performing their duties.
But there are a few things to keep in mind.
If you are recording police officers in private spaces, there is a chance you can also catch other things in the recording such as images of minors or information about victims that would allow people to “dox” them, said Harrison.
“That’s something that recorders might potentially want to be mindful of,” he said. However, according to Harrison, this shouldn’t be a reason not to have the right to record.
“One of the key concepts under the First Amendment is the more information, the better,” he said.
But you have to adhere to certain guidelines when recording officers.
The Reporters Committee for the Freedom of the Press highlights that the right to record in New York is not protected if the individual engages in actions that directly impede police officers’ ability to carry out their job, or if the individual recording does things that would otherwise be considered a crime, such as assaulting the officer in order to record them, or preventing officers from making arrests.
On the other hand, if a police officer prevents an individual from recording by telling them not to, by removing recording equipment or threatening the individual, that person has the right to sue them in New York, according to the Reporters Committee.
Can you record public meetings?
Any meeting that is held by a public body and is open to the public can be recorded, according to the state’s Open Meeting Law, as long as you are not interfering with the conduct of the meeting. Public bodies in New York include any government agencies or state departments. This goes for your local New York City community board meetings, too.