One-Party Consent in Indiana
For those not familiar with the term, Indiana is a one-party consent state. This means that at least one party to a conversation must give their consent to be recorded. In other words, as long as you have the consent of at least one party to a conversation, the law permits you to record it – even if that person is not you. With regard to the telephone, the statute applies to "any person . . . not acting under color of law, and in person, by telephone, or by any electromagnetic, photoelectronic, or photooptical method" (emphasis added). Ind.Code 35-33.5-7-6(b). For example, a law enforcement officer may not record a conversation to which she is not a party in the course of an investigation when not in the presence of a judge issuing an order allowing such recording.
A lot of confusion centers around questions such as whether the law allows you to record a conversation with your spouse , your children, or with your boss. The answer is yes, as long as that person is one of the parties to the conversation. If you have a conversation with your spouse in your own home about the bills, on the phone with your boss about your job performance, at the park with your neighbor about his barking dog, or with your children about their drinking habits, as long as your spouse, boss, neighbor, or child is part of the conversation and knows about the recording, you are generally free to record the conversation under Indiana law, with a few limited exceptions in the criminal law context.
Consequences of Illegal Recordings
Under Indiana Code 35-33.5-1-5, it is a class B misdemeanor to record a conversation in which the individual participating in the conversation has a reasonable expectation of privacy without express consent of all parties. Such a violation is a Class B misdemeanor, which can result in not just a fine, but jail time as well. A Class B misdemeanor can have a penalty of as much as 180 days in prison, in addition to a fine of up to $1,000. The conviction can also inhibit an individual’s ability to gain employment.
Indiana also allows any person injured in any way by illegal recordings to sue the responsible party or parties. Civil penalties may include the amount of actual damages suffered, if any, but may also include liquidated damages of $100 a day for each day of unlawful conduct or $10,000, whichever is greater, and punitive damages and reasonable attorney fees and costs may be awarded to the person or persons injured. An issue of concern is the potential for significant liability in lawsuits, often based on theoretical damage rather than any actual harm. Even the threat of civil action can be used to control a person’s speech and behavior.
Exceptions to the Norm
There are some exceptions to the general rule. Specifically, it will not be a violation of Indiana law for a person to record a conversation if the recording is authorized under a statute of Indiana, or in response to specific court authorization. Also, even if a recording is made without the consent of a party to the conversation, that fact alone may not preclude admissibility of the recording in a criminal prosecution.
For instance, Indiana Code § 35-33.5-1-4 provides that "[a] party to a wire or electronic communication, including a party who is a principal in the communication, may intercept it with any of the following:
- (1) With prior consent of one of the parties to the communication.
- (2) With prior consent of at least one of the parties to the communication, if the primary purpose of the interception is to provide for criminal law enforcement.
- (3) With prior authorization by the court under IC 35-33.5-6-2."
If you have questions about your rights and obligations under Indiana’s laws for recording a telephone call or conversation, call my office today for a free consultation.
Workplace Recordings
With this statute in mind, if you’re a perfunctory manager at the lunch counter in a small town or the financial advisor making a pitch to a high-net worth individual, you probably engage in dozens or more lines of conversation per day. You would be hard-pressed to remember with complete confidence each and every single person with whom you’ve had a private conversation and what specific conversations you had with them. So how would you handle a situation in which a colleague or a member of the public approached the cashier with the video camera and asks to record you for whatever reason? What if the cashier agrees, but you’re not so sure? This scenario is likely to happen more and more as telephone call recordings and wiretaps become more common in our everyday professional lives. Indiana has a law, which is similar to what the Federal government has in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. In Indiana, the relevant code is I.C. 35-33.5-1-5. It becomes a crime when you, "intentionally or knowingly … intercept, attempt to intercept, or to procure any other person to intercept or attempt to intercept …an electronic communication . " The term "intercept" is defined in the state statute as, "the aural or other acquisition of the contents of a communication through the use of any electronic, mechanical, or other device." See also I.C. 35-32-2-247. Crimes like these are termed class D and E, and in Indiana, they are punishable by upto three and one and a half years in the Indiana Department of Correction respectively, and possibly larger fines, depending on what the judge thinks is appropriate.
The short of it is, as long as you’re part of the conversation in your workplace, you’re probably going to be fine with the law. That’s because the statute makes an exception for participants to the conversation, and that’s exactly what you are, assuming you’re one of the parties. What you can’t do is intervene and grab the phone mid-conversation and add your two cents to an employee conversation without being a party to the conversation. What employers could do going forward is prohibit any recording, regardless of participants, under the threat of immediate termination, especially since almost no one will remember precisely which conversations were made in the workplace at any given single point in time. If the policy apparent, and the employment terminates due to lack of compliance, it will be very difficult to win an argument, much less a case.
Comparison between Federal and State Regulations
In addition to Indiana law, there are federal laws that govern the recording of conversations. Most if not all states, including Indiana, are required to comply with federal law, but there are some conflicts.
Federal law, which is enacted in the United States Code at 18 U.S.C. § 2510 et seq., provides that "except as otherwise specifically provided in this chapter … it shall not be unlawful under this chapter for a person … individually or by offer to the communications common carrier … to record an oral communication if he is a party to the communication or one of the parties to the communication has given prior consent to such recording." 18 U.S.C. § 2511 (2) (d). The term "intentionally intercept," as defined in the statute, means "the aural acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510 (4). Importantly, "[i]t shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, electronic, or oral communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception."
Unfortunately, such federal law conflicts with the Indiana law, which requires two-party consent to record a conversation. But, how would federal law, which is intended to regulate the federal government, apply to a person recording a conversation of a private matter in Indiana? There’s no clear answer to that question.
One potential conflict relates to the Federal Wiretap Act, which provides, "Where the contents of any wire or oral communication have been intercepted, no person whose communications have been intercepted, or any party to any legal proceeding arising out of such interception, may disclose the contents of such communication." 18 U.S.C. § 2517 (1). While it would seem logical that that would apply to the recording of a conversation in Indiana, such disclosure is not an automatic violation of the Act. See United States v. Rodriguez, 859 F.2d 439 (9th Cir. 1988).
Additionally, it is likely that there is an operational conflict between the Indiana law as interpreted by Indiana courts and the federal law when the federal government is involved. Courts have had various interpretations of the Indiana law, while more federal case law leaves little doubt as to the interpretation. As courts weigh whether to enforce the parties’ agreement to have the disagreement resolved in a particular jurisdiction, if the outcome depends on whether the federal or state law applies, it is possible that a court will decline to enforce the parties’ agreement.
Therefore, if an individual or entity believes that it is necessary to record conversations with individuals that are private parties, without giving those individuals notice of the recording, then s/he/it should consult an attorney with experience in this area of the law in order to comply with the Indiana Consent law.
Useful Practices for Legal Recording
When it comes to recording conversations in Indiana, be aware that gathering evidence may come with legal risks. While the law does allow for some recordings to be made in certain situations, not having consent to make a recording of a conversation can lead to criminal and civil issues.
Providing consent should happen before you start your recording. You have two choices: obtain the consent of the person(s) being recorded or record your own conversation. Even in the age of smartphones, there is software and hardware that can help you be compliant (like QuickVoice which is I-tunes software that allows you to record messages). Le Kan Du is also an address on I-tunes that gives you a choice for one or two channels for the recordings: mono or stereo. Check it out!
In many cases , it is best to use a traditional digital audio recorder. Good options include Sony’s ICD-PX312 digital voice recorder or the Olympus Digital Voice Recorder. Both of these devices offer recording features that meet the needs of a variety of situations. However, these examples are by no means comprehensive. This is just a starting point that can help you on your search for the right recording device.
You also may want to check the settings on your smartphone (if that’s how you’ll be doing your recordings) to determine if it offers a "voice memo" or similar application. There are other applications available to download to your phone to assist in the recording process. For instance, Rev Call Recorder is one option.
If you decide to record conversations at work, make sure you investigate your employer’s policies on workplace recordings and learn what will happen if you violate them. Then, if needed, discuss your intentions with your boss and obtain his or her approval before beginning your recordings.