Can I Tape Record My Spouse?

Alabama law permits a party to a conversation to tape record that conversation without notifying the other party. What it does NOT permit is tape recording a conversation without the permission of at least one participant. Understanding the law requires reading carefully the various statutes dealing with eavesdropping and surveillance.

Ala. Code § 13A-11-30 defines “eavesdrop” this way: “To overhear, record, amplify or transmit any part of the private communication of others without the consent of at least one of the persons engaged in the communication, except as otherwise provided by law.”

Ala. Code § 13A-11-31 says that a person commits the crime of criminal eavesdropping (a Class A misdemeanor) if he “intentionally uses any device to eavesdrop, whether or not he is present at the time.”

Note that “eavesdropping” is not a crime. Only “criminal eavesdropping” (the use of a device) is a crime.

Ala. Code § 13A-11-30 defines “surveillance” as “secret observation of the actitivies of another person for the purpose of spying upon and invading the privacy of the person observed. And Ala. Code § 13A-11-32 says that a person commits the crime of criminal surveillance if he intentionally engagtes in surveillance while trespassing in a private place (where a person reasonably expects to be safe from surveillance and which is not open to public access).

Just as with eavedropping, note that “surveillance” is not a crime. Only if the surveillance involves some form of trespass does it become a crime.

Federal law is similar to Alabama law, in that it permits tape recording with the consent of at least one party to the conversation.

What I’ve described here is the Alabama law on eavesdropping and surveillance. The laws of many states are more restrictive and might extend to a conversation taped in Alabama. For example, in Florida, it’s a felony to intercept a telephone conversation unless ALL parties have consented. So beware of recording interstate conversations without knowing the state law in all states involved.

Other so-called “all-party” consent states include California, Connecticut, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Nevada (by court order), Pennsylvania, and Washington. Most of the remaining states have provisions similar to that of Alabama, requiring consent by at least one party.

If you want to get deeper into the issue of state laws on tape recording phone calls and other conversations, the Reporters’ Committee for Freedom of the Press has an excellent Guide that includes a description of each state’s requirements.