Virginia Wiretapping Law Explained
The general principles of wiretapping laws in Virginia mirror many other states. Virginia has a one-party consent law for recording conversations, which means that as long as one person consents to the recording, that party (even if they are not a party to the communicating parties) can record it. For example, in state of Virginia v. Grant, the Virginia Supreme Court held that someone may consent to the recording of a conversation with another person without any obligation to notify or obtain the consent of that other party to the conversation. So even though the person doing the recording is a third party, they are still legally authorized to record the communication and do not have to notify or obtain permission from all parties to the conversation.
The idea behind the law is that as long as you are not eavesdropping, it doesn’t matter whether or not both parties to a conversation have knowledge about being recorded. That’s why sometimes you see a big disclaimer in the opening credits of a law and order type of show indicating that it was filmed in a one-party consent state, indicating that the conversations depicted in the show are legal under that state’s laws. On the flip side, if the law enforcement is the party doing the recording, then there are additional restrictions on how they may carry out their recordings. While this could be the subject of a different article (and a different practice) the general law indicates that these type of recordings are restricted based on the law enforcement officer manipulating, recording, managing , or conducting the surveillance where they then must obtain consent of those involved in the communications between the parties and the law enforcement’s recording. Essentially, the law enforcement cannot request the consent of those parties to that communication and then move forward and record it.
The prevailing guidance (that is not codified) is that all wire communications are subject to being overheard and recorded by a party that obtains the consent of one of those parties to the communication. This essentially means that if you have the consent of one party in the communication, then you can move forward with recording the communication without obtaining the consent of the other party.
Many clients ask me if the other party to the communication has to be specifically identified in the recording. Practically speaking, they do not have to be specifically identified under Virginia law, specifically if they are not the one who is consenting to the recording. But depending on the facts of each case, that will also sometimes depend on the purpose of the recording. Either way, it’s better to have the specific terms of the consent (whether it be verbal or otherwise) included in the recording, since it provides a clear understanding of the consent and the purpose of the recording. With regard to the consent itself, it does not have to be directly given as long as the facts and circumstances indicate that the recording was taken in accordance with the law because it is direct that the one-party to the communication is aware of the intent to record and consents to that recording.
The One Party Rule for Virginia Call Recording
The one-party consent rule in Virginia means that if you are a party to the conversation you can lawfully record it. This consent can come from either of the parties to the conversation, and if it is your conversation, it is assumed you consent to the recording.
If you go into the recording knowing you are going to be recording it, you are fine no matter if you tell the other party or parties.
So, what if you accidentally record a conversation you were in but did not mean to have recorded? Is that illegal? No. That is perfectly legal, as Virginia allows for recording without consent as long as the person recording is a party to the conversation.
What if you did not know that you were in the conversation? In that case, you cannot record the conversation because you have no expectation of privacy in that moment.
Exceptions to Virginia’s One Party Rule
Virginia law does offer certain exceptions to the one-party consent rule. Just because Virginia is a one-party consent state does not mean that recording is always proper.
For example, Virginia Code § 19.2-62.1 indicates that a one-party consent do not apply to communications that may breach reasonable expectations of privacy. That statute provides that "in the case of a conversation in which the parties to the communication have a reasonable expectation that such conversation is not subject to intrusions or recording, a party shall be deemed to consent to the interception or recording of that conversation by all other parties to that conversation only if each party to the conversation consents to the interception or recording of the conversation." In other words, the one-party consent rule no longer applies if a party to a conversation has a reasonable expectation of privacy and it is recorded by other participants in the conversation who are either secretly recording the conversation or who have failed to obtain the consent of everyone else involved. An example of a place where a person might expect privacy and therefore might have a reasonable expectation of privacy would be in a bathroom. It is illegal to record sound from a bathroom, even though Virginia may be a one-party consent state otherwise.
Further, it is worth noting that even where only one party consents to a recording of a conversation with someone who is in another state, federal law requires that you obtain the consent of the parties to the conversation in both states. If you do not have the consent of the party to the conversation in another state, it may be illegal federal wiretapping.
Virginia Phone Recording Laws vs. Federal Telephone Tapping Statutes
The Federal Wiretap Act and its Virginia counterpart both criminalize the unauthorized interception and disclosure of wire, oral, or electronic communications, with certain exceptions. The Federal Wiretap Act requires that the person who intercepts the communication act without consent of at least one party. Virginia’s law, Va. Code Ann. §19.2-62, requires consent of all parties, making Virginia a "two-party" state. The Federal Wiretap Act is the more liberal statute because the person intercepting the call must only act without the consent of at least one party, whereas Virginia law requires consent of both parties. Yet, under some circumstances this difference may be largely academic for an attorney seeking to record a call with a potential witness or another attorney, even in Virginia.
For example, under Va. Code Ann. §19.2-69.1(B) an attorney licensed in Virginia may record a call to an unconsenting party if: the call is being recorded by the other party, the attorney informs the other party that the call is being recorded and he is on the line with them, and the recorded call is not used for commercial purposes. If the attorney records the call without the unconsenting party’s consent, he may be liable to be sued for money damages under a private cause of action created by Va. Code Ann. §19.2-69.1(C); however, the attorney cannot be criminally sanctioned by the Commonwealth under Va. Code Ann. §19.2-62 since the exceptions in Va. Code Ann. §19.2-69.1(B) have been clearly established.
Note that attorneys licensed anywhere in the United States, not just Virginia, are entitled to this exception under Va. Code Ann. §19.2-69.1(B). The attorney should be aware, however, that if the attorney is recording with the intention of avoiding the necessity of reporting his conversation to the Virginia Bar, he could still be in violation of Va. Code Ann. §19.2-69.1(B)’s requirement of consent, which could leave the attorney subject to the monetary damages prescribed in Va. Code Ann. §19.2-69.1(C), and also subject to disciplinary sanctions of a Virginia Bar Complaint filed against him in Virginia.
Consequences of Recording Conversations Illegally
In the commonwealth of Virginia and in several other states that have similar laws, you are only allowed to record a conversation if you are a participant and you have given consent to record. Both oral and written consent may be sufficient, but it is important to state clearly that you do not want your conversation recorded.
So what does this mean for you? For example, let’s say you’re on the phone talking with an agent from your insurance company. If you are a participant in the conversation you are allowed to record it so long as you don’t tell the other party that you are recording it. However, even if you do record and save the recording for some unforeseen circumstance, you are prohibited from using it in court against the company for any reason.
The penalties associated with violating Virginia’s law by recording a private conversation without the permission of all parties involved range from a fine to jail time, and there may also be civil implications. In Virginia , violating Va. Code § 19.2-62 is a class 1 misdemeanor carrying punishment of up to a $2,500 fine and/or up to 12 months in jail. Class 1 misdemeanors include convictions for: reckless driving, stalking, possession of marijuana, and destruction of property.
Even if your conviction occurs outside of Virginia, if you committed the crime while in Virginia, you can be prosecuted for the charge pursuant to Va. Code § 19.2-238.2. A violation under Va. Code § 19.2-238.2 may lead to a civil penalty up to $5,000 per offense. Depending on how many times you violated the statute, a court could potentially hand down a penalty that could potentially total more than several thousand dollars.
Additionally, even if you feel the fine is manageable, if you are a person or business that repeatedly violates the privacy of others by recording conversations without permission, the people you record may decide to sue you for libel or invasion of privacy.
Real Life Examples and Case Law
To see how recording conversations has played out historically in Virginia, we can look at a couple of cases from The Virginia Reporter. In 1940, the Supreme Court of Virginia ruled that a private investigator who placed a listening device in the room of a physical therapist in order to obtain proof of her romantic involvement with a married man did not commit a "trespass to chattels." Roberts v. McIlwaine, 172 Va. 363 (Va. 1940). What happened was this: Mrs. McIlwaine played the role of a patient in the office of a Richmond, Virginia physical therapist. Her husband, who was in an unhappy marriage, was invited to this same office to undergo a patient test of his shoulder motion and flexibility. He met Dr. Robins, was impressed with his knowledge and manner, and engaged him to attend him as a doctor. Dr. Robins then became involved with the affairs of the McIlwaine family. Upon Mrs. McIlwaine’s discovery of Dr. Robins’s interest in her husband, she hired a private investigator to investigate the situation. The investigator hid a small listening device in the office. The physician recorded incriminating evidence of the relationship. While the lawyer for Dr. Robins and Mrs. McIlwaine focused more on attorney-client privilege issues, the Court also weighed in on whether the doctor had the right to sue for trespass to chattels and for the invasion of his privacy.
More recently, in 2018, the Internet and the issues of privacy and security have added a rich complexity to this discussion. We will explore that next in our series.
How to Legally Record a Conversatio
Seeking legal counsel before recording any conversations is the safest approach. An attorney who specializes in media law, including the law around recording conversations, can help you understand the law and whether your purpose in making a recording is permissible. Be sure to document consent in writing, not only to protect yourself from legal trouble but also to ensure you have a record of everyone’s understanding and agreement going forward. Additionally, confirm in the written permission that your consent to be recorded does not expire and extends to all future communications.
If you decide to record a conversation: If there is a controversy over whether a consent exists, you should be prepared to demonstrate that your interest in the recording outweighs the other individual’s right to privacy. Responding to an accusation of call recording may be embarrassing, and it may injure a business’ credibility. To avoid these issues, consult with legal counsel and consider obtaining the other party’s permission before making the recording.
Business owners should take preventive steps to ensure employees are following the law when it comes to recording conversations . One route to ensuring compliance is to train employees on the law and create a company policy regarding recording conversations. The policy should clearly state what is permissible, such as using company-owned or leased phones or recording for business purposes only, as well as the consequences for non-compliance. Employees must understand their rights as well as their employer’s rights.
The policy should state whether individuals are permitted to record conversations without the consent of the other party under Virginia law. It should also clarify what happens if employees are in a situation where they know someone might be secretly recording. Employees should be advised not to make any statements that the company would not want the public to see in the unlikely event that that secret recording leaks online.
The policy should also explain how employees can request permission to record calls and what steps to take if they receive a request to consent to record. Employees should understand that they must follow the policy in all circumstances, even if they are worried about getting in trouble or being seen as unhelpful. The policy should clarify which employees or departments are responsible for handling any complaints or requests to record conversations that are otherwise against the policy.