Arizona One-Party Consent Law
Arizona is a one-party consent state, meaning that as long as one party to the communications (which includes telephone calls and in-person conversations) records the communications, such recording is not illegal. In Arizona, a person’s "private communication" is protected by A.R.S. 13-3001, but "private communication or conversation" does not mean recorded communications, and is not protected by that law. The law that protects individuals from being recorded without their knowledge in the context of telephone calls and in-person conversations is A.R.S. 13-3005, also known as the wiretapping and electronic interception statute, which protects a person’s reasonable expectation of privacy in his or her private conversations or communications and prohibits any unauthorized or intentional interception of or taping of private communications or conversations. Because Arizona is a one-party consent state, under A.R.S. § 13-3005 any "interception" of a private communication by a person who is a part to the communication itself (meaning the recording is being done by A PERSON and not a machine), is not "unauthorized" and therefore does not violate the law. In other words, you can tape record anything that you experience or overhear as long as you are a part of the communication. This law does not apply to taping done by a machine, such as a video camera or security camera, but tends to only apply to taping done by a person . For example, someone with a passive recording device, such as a video camera or a cell phone that has a video camera and recording capability, will not necessarily have a reasonable expectation of privacy if the other person sees such taping. However, if the taping was done by an active recording device, such as a cell phone with speed dial that leaves no indication that recording is going on (so that the other person hears nothing different during the phone conversation or nothing unusual at all such as red light snapping on and off during the in-person conversation), then the conversation has a reasonable expectation of privacy and hence applying the law to prosecute the taping would be a close question of fact.
Privacy concerns with respect to using recording devices, even sometimes without notice to participants of the recording, have been litigated for years. To date, courts have yet to strike down this statute as unconstitutional. Courts generally reject privacy rights in public places (a public park includes attention grabbing, such as street performances), see Scherer v. U.S., 856 F.2d 1434 (9th Cir. 1988), so people in public places should have little to fear if they are being taped due to the fact that these places are not private. Yet, there has yet to be a case in Arizona that squarely addresses the issue whether the law allows for tape recording private activities that may be considered "intrusive," such as recording during a private confession with a priest or while in a jury deliberation room.
What is a ‘Conversation’ in Arizona?
Rather than specifying in detail what subject matter is protected from recording, Arizona’s eavesdropping laws provide a definition for the broad category of "conversation." While it is clear that in-person dialogue is included, in addition to phone calls and stored electronic communications, other forms of communication are not readily apparent.
So what qualifies as a "conversation" that cannot be intercepted or recorded? Per the relevant statute, a conversation is: "[A]n oral communication, respecting which a party to the communication has a reasonable expectation of privacy under circumstances justifying such expectation, unless all parties to such communication consent to such interception."
Over the years, case law has clarified just how far this definition extends. For instance, a letter sent via the postal service is not considered a recordable "conversation" under Arizona recording laws, as there is not a reasonable expectation of privacy in this medium. On the other hand, an email sent directly from one person to another that is kept private and is not posted on a public network or server does constitute a recordable "conversation," because there is a reasonable expectation of privacy in this form of communication.
Further, interactions that are unavoidable by their nature — such as employee interactions with customers in a retail store or passing conversations on the street — do not constitute conversations that are exempt from recording.
The Legal Consequences of Intercepting a Conversation
It’s critical that you understand the law because the potential penalties for unlawfully recording a conversation or phone call in Arizona have both civil and criminal implications.
Civil Consequences
Under Arizona law, if someone surreptitiously records or overhears an oral, wire or electronic communication with the intent to commit any illegal act, the person whose property was used in committing this offense may sue the offender in a civil action for damages. The person may be awarded $100 per day for each day of violation or $1,000 per day for each day of violation and reasonable attorney fees and costs. Proof of damages is not an essential element of this offense. If the invasion of privacy results in the disclosure of confidential communications, the person whose privacy was invaded can bring an action for an injunction or other equitable relief to prevent further disclosure of the communications.
Criminal Consequences
Because recording a conversation without consent in Arizona is a Class 5 Felony or a Class 6 Felony there can also be criminal consequences. The specific criminal offense charged depends on the particulars of the recording. For example if you intentionally recorded a telephone call in Arizona then you could be charged with a Class 1 Misdemeanor. Regardless, a conviction can result in a fine of up to $150,000 and/or jail for up to six months for a misdemeanor, a fine of up to $150,000 and/or prison for up to one year for a class 6 felony, a fine of up to $250,000 and/or prison for up to two years for a class 5 felony and a fine of up to $250,000 and/or prison for up to three years for a class 4 felony.
Exceptions to the Rule
Nevertheless, there are some notable exceptions to these general rules.
Federal Law: For example, the federal Wiretap Act requires that, as a general rule, two-party consent is obtained for the electronic interception of any wire or radio communication, including those involving cell phones and VOIP. 18 U.S.C. § 2511(2)(d) (authorizing one party to consent to recording as long as the recording is then obtained lawfully). However, even under federal law, if the agency is a law enforcement agency with a warrant, then only one-party consent is required. The rule can thus change depending on the context – and particular law involved.
Law Enforcement: Law enforcement officers are also permitted to intercept conversations and record them without the consent of anyone else. For example, if an officer believes that a particular conversation may contain evidence, he or she may seek a warrant. On the other hand , if the officer recording the conversation is one of the parties, then he or she does not need a warrant (even in federal investigative situations). 18 U.S.C. § 2511 (3) (authorizing a party or agent to that party to obtain an oral communication via "any electronic, mechanical, or other device").
Public vs. Private Settings: Finally, the context of the recording may affect what might actually be permissible. For example, it is permissible to record in a public setting and, arguably, under federal law to do so in private settings as well. However, under Arizona law, it would be a violation to record a conversation in a private place, even if the people involved in the conversation were aware. Additionally, if the recording involves hidden cameras in a private setting, this would likely raise other criminal issues that would result in the recording having little substantive, evidentiary value.
Legally Recording a Conversation in Arizona
While the law is relatively straightforward on recording conversations, that doesn’t always help most people in knowing how to handle real life situations. Here are some simple dos and don’ts to help understand the law and how best to protect yourself:
DO first consider whether recording is even necessary. Recording requires people to be aware you are recording so you have to ensure it is worth the potential effect that will be had on you and the subject of the recording. If the information you hope to capture is not likely to be readily available elsewhere, than consider whether recording is warranted to be sure that you obtain all relevant information.
DO also remember that just because the recording has captured incriminating statements, does not mean the evidence will actually be used against the other party. It is possible to obtain many recordings of adversaries making poor statements that are never actually used to prove anything or are otherwise inadmissible at trial – and if they are used, the prosecution may seek to have them excluded with the recording party being unable to prevent that.
DON’T try to hide the fact you’re recording in hopes that the recording will be used as if it is legal. This issue is essentially void of legal precedent despite the importance of the privacy rights at issue. Courts will almost always allow the recording to be admitted into evidence and let the parties argue the evidence’s effect. If you believe the recording is going to be helpful, accurately advise the participant that you are recording so that they are more likely to engage with you in a helpful manner. Taking actions to make someone else believe they are being recorded is less likely to create admissible evidence since they have placed their statements in the recording without the belief they were being recorded.
DO explain to the person you are recording why you are recording. If you can do so without concerning them about your motives, take time to explain and ask helpful questions of the participant. Taking such actions may help establish relevant context and ensure you are prepared to take action later and use the statements at trial. If the person declines, assess whether you still would be able to obtain the information requested through other avenues, or should cease your attempt to record without additional interaction to avoid escalation – in which case it is probably sufficient to stop and consider the possibility of seeking the information through other means.
DON’T assume the conversation must remain confidential despite having no expectation of confidentiality. In the context of any conversation, do not assume the other person will be required to keep any information confidential and don’t promise the other person their conversation will be confidential. If you’re using the recording to reveal information to the public, then sharing it with others and otherwise keeping it confidential is not likely to be helpful. Contact an attorney for guidance on your specific situation because certain consequences may not arise for some time and it is crucial to understand the law as you are going through the process.
DO practice politeness. Being kind and professional is almost always a good idea when having difficult conversations — especially when recording conversations of others. If you are aggressive and combative, the recorded statements made may not carry as much weight and when taken out of context could be misinterpreted. On the other hand, being disingenuous and providing comments that contain negative connotations runs the risk of damage resulting from the recording being played back to the conversation participants and misinformation being spread. When done in good faith, the recorded statements are less likely to be exclusionary and can help prevent sentiment opposing the intent of your original purpose to be introduced.
DO keep the recording secure. Immediately after the recording, keep it in a safe place secured and only share the recording with others that you fully trust. As soon as you otherwise share the recording with anyone who may be contrary to your interest, the few individuals who have received the recording may use the recording to then try to obtain the evidence from the others who have received the recording and threaten them with a lawsuit if they do not comply – thus silencing the witnesses or at least getting your evidence thrown out.
DON’T share the recording. Even having one individual listen to the recording can lead to the recording being misinterpreted and spread to others contrary to your interests, thus obfuscating your position on the issues. Sharing the recording with others could also avoid the private nature of recording and torpedo your ability to exclude statement evidence you wish to share using your recordings in the future.
Recording Conversations: Professional and Ethical Considerations
In addition to important legal considerations, there are other very real professional and ethical issues that arise from the often-blurry line between digital private reflection and digital public communication. When those lines are breached in ways that violate people’s reasonable expectations of privacy, the breach can result in significant negative consequences. Importantly, it is not only the natural outcome of negative consequences that ought be considered; the potential for negative effects on relationships with coworkers, business partners, clients, and strangers ought also be considered before innovatively using new technology.
In the professional space, the unintended audience may be a coworker who does not realize he or she is being recorded or an individual who has not given permission to be included in the recording . In the public space, the audience could be local individuals who feel they were observed by someone while engaged in an intimate act and become uncomfortable, some might feel angry that their actions were recorded presumably for some nefarious purpose. These feelings are morally understandable. However, the appropriate way to handle the situation is to communicate to the person you recorded that you chose to record them, acknowledge that they may feel uncomfortable with it, and if applicable, ask what if anything can now be done to address the concern. In general, people will be less offended and defensive when policies and practices are put in writing so that there is less risk of misunderstanding.