Not legal advice. This site is an editorial reference. Laws change — always confirm with a qualified attorney in the relevant jurisdiction before recording, and check each page’s last reviewed date.

One-Party vs. All-Party Consent

The shorthand is rough but useful: in most US states and under federal law, one party to a call may record it; in thirteen states, every party must consent. The line between the two is sharper in the statute books than it is in the case law, where exceptions, definitions of “expectation of privacy,” and intra-business rules all complicate the picture.

The terms, defined

One-party consent means a participant in a conversation may record it without telling anyone else on the call. The participant is, in effect, consenting on her own behalf, and her consent is sufficient under the statute. This is the rule under federal law (18 U.S.C. § 2511(2)(d)) and in the majority of US states.

All-party consent (often called “two-party consent,” which is misleading when there are three or more people on a call) means every party to the conversation must consent before the conversation may lawfully be recorded. The consent need not always be express — it may be inferred from a clear notice that recording is in progress — but it must extend to every participant.

Which states require all-party consent

The conventional list of strict-consent jurisdictions includes:

  • California — Cal. Penal Code § 632 (confidential communications)
  • Connecticut — Conn. Gen. Stat. § 52-570d (civil), § 53a-189 (criminal)
  • Delaware — statute reads one-party; case law and a separate privacy statute complicate the analysis
  • Florida — Fla. Stat. § 934.03
  • Illinois — 720 ILCS 5/14-2 (current statute, post-Clark)
  • Maryland — Md. Code, Cts. & Jud. Proc. § 10-402
  • Massachusetts — Mass. Gen. Laws ch. 272, § 99
  • Michigan — Mich. Comp. Laws § 750.539c (statute’s scope contested; Sullivan v. Gray reads it not to bar participant recording)
  • Montana — Mont. Code Ann. § 45-8-213
  • Nevada — Nev. Rev. Stat. § 200.620 (telephonic; in-person is one-party under § 200.650)
  • New Hampshire — N.H. Rev. Stat. Ann. § 570-A:2
  • Pennsylvania — 18 Pa. Cons. Stat. § 5704
  • Washington — Wash. Rev. Code § 9.73.030

The list is conventional, not canonical. Two states — Michigan and Delaware — have statutory text that reads one-party but case law and overlapping statutes that produce a different practical answer. Always read the relevant state page rather than relying on a list.

Why “two-party” is misleading

A three-way call in Pennsylvania requires the consent of all three participants, not just two. We use “all-party” throughout this site to avoid the implication that strict-consent states require only two consents.

How consent is given

Consent may be express — “Do I have your permission to record this call?” followed by an affirmative “yes” — or implied. Implied consent arises most commonly in two ways:

  • Notice plus continued participation. A clear notice at the start of the call (“this call is being recorded”) followed by the other party’s continued participation is widely treated as implied consent. The notice must be clear, audible, and given before recording begins.
  • Beep tone. Older case law treated a regular beep tone as sufficient notice. Modern practice prefers an opening verbal disclosure.

Implied consent is not a perfect defense. A few jurisdictions have applied the strict-consent rule to require an affirmative consent, not merely silence after notice. See the state-specific pages for the local rule.

Common exceptions

Several states recognize narrow exceptions to all-party consent. The most common:

  • Evidence of a crime against the recorder. A handful of states (for example, Connecticut for civil purposes, Oregon for in-person recordings of felonies) allow a party to record without all-party consent where the recording captures evidence of a crime being committed against the recorder.
  • Recording in a public place where no expectation of privacy. Most states’ statutes require a reasonable expectation of privacy. A conversation shouted across a public street is generally not protected; a phone call almost always is.
  • Vicarious consent. Many courts have permitted a parent to consent on behalf of a minor child for recordings made in the home for the child’s benefit (the “Pollock doctrine,” Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998)). State law varies.
  • Law enforcement. Title III and analogous state statutes govern law-enforcement intercepts; private actors do not benefit from these exceptions.

How to handle a cross-border call

The conservative practice on any call where a participant is in an all-party-consent state is to obtain audible consent at the start. The more aggressive practice — relying on the federal one-party rule because the recording party is in a one-party state — has been rejected by the California Supreme Court in Kearney v. Salomon Smith Barney, 39 Cal. 4th 95 (2006), and is risky elsewhere. See our cross-border calls page for the conflict-of-laws analysis.

One-party-consent states (jurisdictions where a participant may record without telling others)

Every US jurisdiction not listed above operates on a one-party-consent rule for ordinary participant recording, subject to that state’s own definitions of “intercept,” “oral communication,” “expectation of privacy,” and the federal “criminal or tortious purpose” exception, which appears in many state statutes too. See each state’s page for the specifics.

A note on the in-person vs. telephonic distinction

Several state statutes apply a different rule to telephone conversations than to in-person ones. Nevada is the clearest example: telephone calls are all-party under § 200.620, while in-person oral communications are governed by § 200.650, which requires a reasonable expectation of privacy but does not require consent. Always check whether the rule you have read applies to the medium you are using.

Related