Is it Legal to Record Phone Calls in SC?
Is it legal to record phone calls in SC?
What if you are a party to the phone call? Is that different than if you “tapped” someone’s phone line with a recording device? And what about in-person conversations? Can you turn on a recording device in your pocket or record a conversation on your cell phone?
If you are recording someone in SC, do you have to tell them? What if someone illegally records you, is there any remedy? What if you are recording a phone call with someone in another state? Does SC law, federal law, or the other state’s law apply?
The “wiretap laws” in SC, other states, and federal law can be complicated, but if you are planning on making a recording, whether it is a phone call or an in-person conversation, you need to know what is legal and what is not legal.
Is it Legal to Record Phone Calls In SC?
SC is a “one-party state,” which means that it is legal to record phone calls in SC if you are a party to the conversation.
SC Code Section 17-30-20 makes it a crime punishable by up to five years in prison to “intercept” any wire, oral, or electronic communication:
Except as otherwise specifically provided in this chapter, a person who commits any of the following acts is guilty of a felony and, upon conviction, must be punished as provided in Section 17-30-50 of this chapter:
(1) intentionally intercepts, attempts to intercept, or procures any other person to intercept or attempt to intercept any wire, oral, or electronic communication;
(2) intentionally uses, attempts to use, or procures any other person to use or attempt to use any electronic, mechanical, or other device to intercept any oral communication when:
(a) the device is affixed to or otherwise transmits a signal through a wire, cable, or other like connection used in wire communication; or
(b) the device transmits communications by radio or interferes with the transmission of the communication…
It is also a crime to disclose or use the contents of any intercepted communications:
(3) intentionally discloses or attempts to disclose to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(4) intentionally uses or attempts to use the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection…
It is also a crime to disclose the contents of an otherwise legally intercepted conversation when the conversation was recorded by law enforcement as part of a criminal investigation:
(5) intentionally discloses or attempts to disclose to any other person the contents of any wire, oral, or electronic communication intercepted by means authorized by Section 17-30-70 or Section 17-30-95 when that person knows or has reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation and the disclosure is not otherwise authorized under this chapter…
SC is considered a “one-party state” because SC Code Section 17-30-30 contains an exception when you are a party to the conversation or if someone who is a party to the conversation has given consent for you to record:
(C) It is lawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception.
So, if you are talking to someone on the phone in SC, it is perfectly legal for you to record them without telling them or asking permission (or for them to record you). If you are talking to someone in person in SC, it is also legal for you to record the conversation without telling them or asking permission.
If you are not a party to the conversation, it is still legal for you to record the conversation, but only if at least one person who is a party to the conversation has given their consent – you don’t have to inform or get consent from anyone else as long as one person has given their consent.
Is it Legal to Record Phone Calls in Other States?
Every state has their own wiretap laws – some states are one-party states like SC, and others require the consent of all parties.
Is it Legal for Attorneys to Record Phone Calls in SC?
It is legal, but unethical for attorneys to record conversations in the course of representation and without consent in SC. It is prohibited by the SC Rules of Professional Conduct, but other states do not have the same prohibition.
It is Legal to Record Phone Calls Under Federal Law?
18 USC Section 2511 also makes it a crime to intercept communications:
(1) Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when…
But, like SC law, federal law allows you to record a conversation where either 1) you are a party to the conversation, or 2) at least one person who is a party to the conversation gives their consent:
(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.
What if I Want to Record Someone Who is In Another State?
If you want to record someone on the phone who lives in another state, or if there is any question about which state’s laws apply, you should always err on the side of caution and follow the most restrictive law that might apply.
For example, if you intend to call someone who lives in a two-party state (the law requires the consent of the person you are recording), do not record without informing the person that the conversation is being recorded.
If you want to record all conversations on your telephone, for your protection or for quality assurance purposes at your business, include a message at the beginning of every call that clearly states that all conversations are recorded.
Do the Wiretap Laws Apply to Video Recordings?
Only if the video recording also has an audio component – SC state and federal law say “…to intercept, any wire, oral, or electronic communication…”
“Oral communication” is the part that covers simple conversations. Although the wiretap laws also cover the interception of wire or electronic communications, there is no prohibition on video recordings, with or without consent, if you are not also recording audio of people’s conversations or unreasonably invading a person’s privacy.
For example, you can put a security camera on your house that covers public areas like a sidewalk or street, but you cannot leave an audio recorder outside your house that would record people’s private conversations as they walk by…
Can I Sue if Someone Illegally Records Me?
SC Code Section 17-30-135 authorizes a civil lawsuit for the greater of $25,000 or $500 for each day of the violation, punitive damages, attorney fees, and court costs:
(A) Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this chapter has a civil cause of action against any person or entity who intercepts, discloses, or uses, or procures any other person or entity to intercept, disclose, or use the communications and is entitled to recover from the person or entity which engaged in that violation relief as may be appropriate, including:
(1) preliminary or equitable or declaratory relief as may be appropriate;
(2) actual damages, but not less than liquidated damages computed at the rate of five hundred dollars a day for each day of violation or twenty-five thousand dollars, whichever is greater, not to exceed the limits on liability provided in subsection (F)(3);
(3) punitive damages, except as may be prohibited in subsection (F)(4); and
(4) a reasonable attorney’s fee and other litigation costs reasonably incurred.
SC law also authorizes a civil lawsuit against any state agency or law enforcement officer who discloses or uses intercepted material in any way that is not authorized by law, although the lawsuit must be brought under the SC Tort Claims Act.
SC Criminal Defense Lawyer in Charleston, SC
Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts. If you have been charged with a crime or are under investigation, call now at (843) 808-2100 or send an email to schedule a free consultation.