Tennessee Recording Laws Explained
One of the first things to understand about recording conversations and phone calls in Tennessee is the difference between one-party and two-party consent states. Some states are what are known as one-party consent states, which means that anyone recording a conversation or phone call only needs consent from "one-party" to the conversation. On the other hand, Tennessee is a two-party consent state, which means you need the consent of all parties to a conversation or phone call in order to record it with some exceptions.
Tennessee law defines this very clearly and states "all parties must consent to the recording (or be reasonably able to consent)." That pretty much says it all. You need permission from everyone . The law goes on to state "a person is presumed to have knowledge of the contents of a telephone conversation or telecommunication if the person is participating in the telephone conversation or telecommunication." This means that if you don’t get consent from everyone involved, you are still on the hook for secretly recording or listening to a conversation, even if you presume they knew they were being recorded, unless one of the exceptions below applies to you. These exceptions to recording without consent in Tennessee mostly apply to law enforcement and government employees. That said, there are a few exceptions: You can always speak with an attorney if you have questions about your specific situation when it comes to recording in Tennessee.
Consent-based Recording
Obtaining consent is a crucial part of filming under Tennessee law. There are two ways to obtain consent. One way is to obtain the consent of both parties privately and secretly and the other way is for the parties to publicly declare that they consent to you recording each other. The Tennessee law is as follows:
T.C.A. §39-13-601(b)(1) provides that it is an offense to record or divulge the contents of an intercepted communication if the person who records the conversation knows or has reason to know that the interception of the contents or the divulgence of the contents would violate §39-13-601(a).
T.C.A. §39-13-601(a)(3) provides that it is an offense to "intentionally overhear or record a wire, electronic, or oral communication with the intent to complete" the information prohibited by subsection (a)(1). There is no express exception in subsection (a)(1) to justify the nonconsensual recording of a conversation.
Tennessee Courts have held that wiretaps and hidden video cameras without notice are eavesdropping and illegal. If, however, the parties consent to be recorded, such consent is not illegal. See State v. Lentz, 219 S.W.3d 10 14-15 (Tenn. Crim. App. 2006).
In Lentz, the trial judge found "the audio and videotape of [the victim of the alleged aggravated assault] was admissible. The tape recorded conversations among the [appellants] and [the victim] at the scene of the crime were properly obtained with [the Appellant], being aware of the camera recording the events and [the victim] thanking him for it." Id. at 17.
In State v. Moore, the police apartment had a camera and recording system concealed in the officer’s jacket pocket and later on in a backpack. After charging the Defendant with rape of a child based on materials captured by the equipment, the State argued that the Defendant consented to the recording due to the presence of the officers and equipment in the room.
Moore questioned whether his consent had been given and whether it was effective. The Court held "the issue of whether counsel for the appellant consented to the placement of the recording device in his backpack by the police or even whether he was aware of its placement is a close question because counsel was not used as the State’s witness in this matter [referring to the suppression hearing]. However, we note that the recording device was not hidden in the same manner as had been done in Lentz and State v. McAnally, 223 S.W.3d 420 (Tenn. 2007). The device was right out in front, with the appellant’s counsel admitting his knowledge of the recording equipment. Under these circumstances, we agree with the court that the appellant consented to videotaping by preventing counsel from testifying as a witness in this proceeding."
There is one final point to note under Tennessee law. Where the person is a minor, you need the consent of the parent or guardian before filming.
Exceptions to the Rule
Although in Tennessee, as in most jurisdictions, you must have the consent of either party to a conversation before you record that conversation, there are three important exceptions to that rule: The first is that the public recording statute, T.C.A. section 40-6-303, allows citizens to record public meetings without the consent of any participants. For that reason, it is important that, when you are out in public, you don’t have an expectation of privacy. Courts have held that "even though a person third-party steals into a public meeting…he has no [privacy] interest susceptible to protection under the Fourth Amendment," (Ibid.). The second is in some cases where law enforcement officers are involved. Under T.C.A section 39-13-602, law enforcement officers are exempt from the wiretap act before arresting, detaining, or searching a person if they have "good cause to believe the person possesses a weapon," and "reasonably believe the interception may provide evidence of criminal activity." In those limited situations, the police officer may record without consent. The final exception involves recordings made in the course of employment that are made in the workplace using workplace equipment and at the workplace. T.C.A. section 40-6-302(h) holds that such recordings are considered to be "for the purpose of internal personnel evaluation and review." Such a recording would not be permitted however, if the "primary purpose" of the recording is to cause harm or harassment to any person involved.
Fines and Penalties
In Tennessee, the penalties for illegally recording a conversation can be severe. As mentioned previously, Tennessee is the 38th state in the country that allows for one-party consent to record telephone conversations. In general, the penalty for illegally recording a telephone conversation is a fine not exceeding ten thousand dollars.
Civil lawsuits based on illegal recording of communications may have a much higher financial cost. Under the Tennessee Wiretapping and Eavesdropping statute, an individual whose communication was illegally recorded may sue for damages from the person who did the illegal recording. Moreover, in the event of a judgment in favor of the victim, the statute provides attorneys fees must be paid by the defendant. Therefore, there is a potential for substantial financial liability on the part of an illegal recorder. In a criminal setting, any person who willfully violates the Wiretap Act through recording a wire or oral communication, without a court-ordered authorization, faces a Class E felony. A Class E felony in Tennessee is punishable by one to six years in prison and/or a fine not exceeding $3,000.00. There are several other criminal and civil civil remedies that may be available to victims of illegal recordings, but they are beyond the scope of this article.
Federal vs. Tennessee Tape-Recording Statute
As noted earlier in this article, federal law regarding recording conversations cannot be more restrictive than state law, but it can be more lenient in states that have a two-party consent requirement (meaning all parties to a recorded conversation must consent to be recorded). Currently, 11 states have a two-party consent requirement. In such states, such as Tennessee, a federal case decided in 2012, U.S. v. McFadden, held that in situations where the speaker (or writer) has a reasonable expectation of privacy that is infringed by an unlawful recording, courts should "apply the state laws concerning such reasonable expectation of privacy." In other words , because in Tennessee there is an expectation of privacy that the other party to a conversation will not record the conversation unless you are being recorded and you give consent, the provisions in federal court regarding the reasonableness of your expectation of privacy govern. However, if you are in Kentucky (which has a one-party consent requirement for tape-recording conversations), then the federal court does not look to the state code sections regarding expectations of privacy, but, rather, looks to federal law. This could mean that in the above two-state scenario, the outcome of your federal court litigation could depend in part upon whether the state in question has a one-party or two-party consent recording requirement.
Non-obtrusive Recording
If you’re considering the use of audio recordings in Tennessee, here are some practical tips to bear in mind:
· A failure to comply with Tennessee’s recording laws may result in civil liability. Therefore, ensuring compliance is critical if you want to hear consistency in the recordings.*;
· The tape or disc should be marked, before playback, to indicate that it cannot legally be played in a public place. Where the parties are cooperating and want the tape or disc to be used in court, such a disclaimer is unnecessary;
· Unless the parties agree otherwise, there should be no third-party observers present during the recording. Failing to comply with this rule may result in a criminal charge of illegal interception;
· No one other than the principal parties to the conversation should be interviewed while the recording occurs;
· The person who introduces the recording at a trial must be one who had personal knowledge of the facts recorded. This may be avoided through the appointment of a representative from the recording company, who will not listen to the recording until called as a witness;
· Reproduction of a recording should be kept to a minimum, with only one or two copies made for the case;
· It is recommended that, where a tape includes several conversations, that blanks be inserted at that portion of the tape;
· The original tapes should be retained as long as possible in a locked file, in order to test for evidence of tampering; and
· The tapes should be coded with the initials of the clients and the date and time of the recording. Where appropriate, the initials should be stamped across the tape itself;
As is the case with all good legal advice, the best way to ensure compliance with Tennessee law may be to seek the advice of an attorney licensed in Tennessee.
Answers to Your Recording Questions
Can I be sued if I record conversations in public in Tennessee?
In Tennessee, you cannot be sued for merely recording conversations in public if that recording is not made for a criminal or tortuous purpose.
Note: Recording conversations in public by itself does not give rise to liability for invasion of privacy. However, a case could be made out that recordings with the intent to embarrass or harass will give rise to liability for invasion of privacy.
Can the police search my home, computer, car, etc. to find and destroy recordings of conversations if they are not evidence of a crime?
The police can act as if every cell phone contains a recording device in a criminal investigation and they can look for it and possibly seize it. To make the point clear, if during an arrest the police search your home and uncover evidence, even if it is just evidence of you fleeing the scene, the police will act as if any incriminating information on the cell phone is admissible evidence. Nevertheless, there is a limit on what police may do when seizing property. If the police already have evidence of a crime, they have no right to go to your computer and look for other evidence of unrelated but still incriminating crimes. In their view, it’s all one crime and the need for privacy still applies. A criminal investigation must be targeted to the crime under investigation and not a license to conduct a general search and seizure of persons and items in their possession.
Can I be charged with a crime or sued if someone else recorded a conversation and shared it with me?
Yes , Tennessee Code Annotated Section 39-13-601 criminalizes knowingly using or disclosing a recording of a private conversation. In addition, transferring to another person a recording of a private conversation that was obtained in violation of the statute is criminalized by Section 39-13-602. It is important to note that any recordings made prior to July 1, 1989, are generally lawful, as long as the intent to commit a crime is not involved.
Criminal intent. Yet again, the law relates back to the concept of criminal intent. A person cannot obtain, give away, sell, or otherwise disclose recordings of a conversation that was secretly made with intent to commit an unlawful act. So, the mere fact of holding onto such a recording by itself will not trigger criminal liability.
Can I sue if I received my recording of a private conversation under circumstances that violate the law?
Yes, as mentioned previously, a person can sue for invasion of privacy if the person made a recording of a private conversation without his or her consent. The law does not protect the recipient of an illegally obtained recording from civil liability. However, because the law typically assumes that private conversations are intended for a person’s private disclosure, the innocent recipient of such a recording would not usually face liability for receiving and holding on to the recording. Then again, if there is evidence that the innocent recipient knew or turns a blind eye to the lawfulness of the method used by the person who made the recording, then, the usual assumption of privacy would be violated and that would be sufficient to trigger liability. It all turns upon the reasonableness of the action.