The Price You'll Pay to Press Play: When and Why You Should Think Twice Before Recording Your Spouse

• Author: Michaela Cronin
• Pages: 25-26

SUMMER 2021 25

travel and speak to each other from across the globe at just

the click of a button expand with constant advances in

technology, we continue to communicate with our partners

across state lines. is raises several questions when it comes

to recording. In which type of jurisdiction are you creating

the recording? In which type of jurisdiction is your out-of-

state spouse speaking to you from, and where is the device

you are using to record them located? Most importantly,

which jurisdiction’s laws control? ese issues will be best

addressed by your attorney.

Federal Consent Laws

Once state lines are crossed, it can also be dicult to discern

whether state or federal law applies (or both). e Federal

Wiretap Act at 18 U.S.C. § 2520 imposes a one-party-con-

sent-type standard, subject to certain exceptions. It was

originally written to cover only wire and oral communications,

but it has since been revised to protect electronic communica-

tions as well, such as private emails and text messages to which

a person has a reasonable expectation of privacy.

As a result, you should reconsider before hacking your ex’s

password-protected Gmail account, even if you think they

have given you free reign to browse their online activity. For

example, maybe your spouse permits you to use their

Amazon account to order school supplies or stream movies

for your kids. However, this consent is likely limited—you

can order backpacks, but you cannot check the order history

for proof of adulterous gifts sent to a secret sweetheart. It is

easy to see how the lines could start to blur as you consider

information your spouse makes available to outside parties

on social media sites like Facebook and Instagram.

Nonetheless, screenshots of your online sleuth work

might violate federal law, which begs the additional question

of what exactly qualies as consent. Can consent be implied,

or must it be explicit? Can it be retracted, and when? Is

consent given under false pretenses sucient? Again, the

answers to these questions will depend on the applicable

laws, which makes determining your rights to record quite a

challenge without your lawyer’s help.

Recording Your Spouse’s Interactions with Your

Children

As you may know all too well, at the center of any child

custody dispute is determining what resolution is in the best

interest of the child. It naturally follows that a child’s relation-

ships with his or her parents will play a large role in awarding

custody, which may make documenting how your spouse

speaks to or treats your kids feel imperative. is could easily

be accomplished by recording your child’s conversations with

your spouse on the phone or asking your child to recount on

camera something your spouse said to them. Still, recording

these interactions is often subject to restriction.

Some one-party-consent states grant parents vicarious

authority to consent to the recording of a conversation their

e Price You’ll

Pay to Press Play

When and Why You

Should Think Twice Before

Recording Your Spouse

BY MICHAELA CRONIN

You may be tempted to record your spouse on the

sly in a particularly contentious moment—espe-

cially when a nasty divorce or custody battle is

looming. Heated arguments, candid admissions,

and physical altercations may seem to present

perfect opportunities to hit “record,” catching your soon-to-

be ex in the most unattering of lights for all (read: the

court) to see. However, the implications of spousal recordings

vary from state to state and may even subject you to liability

yourself. So, what are the most important factors to consider

before putting your spouse on the virtual permanent record?

One- versus Two-Part y Consent States

States apply dierent wiretapping laws, which govern when

recording another individual is permissible. In general, any

given state can be categorized as either a “one-party” or

“two-party” consent jurisdiction (although each state may

have its own unique legal intricacies to explore). Over ten

states employ two-party consent laws (including California,

Florida, Massachusetts, and Pennsylvania) that aord

individuals the strictest protection of their fundamental right

to privacy. In these states, all parties captured on an audio

recording must know and consent to being recorded. A

person who records another without permission could expose

themselves to criminal penalties as a result—and the audio

le certainly would not be admissible in court.

Alternatively, in one-party consent jurisdictions, only one

party to a recorded conversation must consent, which makes

catching bad behavior on tape a more valuable (and legal)

exercise. However, even in these states, it is unlawful to

intercept and record a conversation to which you are not a

party, such as secretly recording your spouse’s private phone

conversation with a third party. States in both types of

jurisdictions typically apply exceptions for communications

captured by police, emergency service personnel, and the like.

Also, audio les like voicemail messages are likely to hold up in

all state courts because the speaking party undoubtedly knew

he or she was being recorded without condition.

In view of these rules, it can quickly become much more

complicated than simply pressing “record.” As our abilities to

Published in Family Advocate, Volume 44, Number 1, Summer 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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