Understanding the Alabama Recording Laws

Alabama Recording Laws: The One Party Consent Rule

In Alabama and many other states, recording phone calls and in-person conversations is a "one-party consent" rule. Here’s what you need to know: Alabama law makes it legal when at least one party to the communication consents to the tape recording of the conversation. When does this apply? To both tape recording and phone conversations or in-person dialogue. Consent can be obtained from any party to the communication. In practice , this may be one-on-one consent, as in the case of a phone call between two individuals or an in-person conversation with someone else. Additionally, consent may also be obtained in the form of a general notice—"we may be recording this call for [or "to improve our service"] etc." Learen Video Enterprises v. Ins. Explorer, 834 So.2d 751, 759 (Ala.2002).

Federal vs Alabama Law on Recording Conversations

Alabama state law is fairly straightforward. It’s a one-party consent state, meaning you can record a conversation if you are participating in the two-party conversation.
Federal recording laws do not have the same presumption and instead see all calls as coming under the law’s purview. Federal recording laws, the federal wiretap code, 18 U.S.C. § 2511, has four parts: the first states the prohibition against recording communications, the second talks about the exception with proper consent, the third deals with interstate and foreign communication, and the final part contains definitions. The prohibition section states, "Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(c) willfully divulges the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
(d) willfully retains the benefit of the unauthorized disclosure to another of the contents of a wire, oral, or electronic communication, knowing or having reason to know that such disclosure was made in violation of this subsection,
shall be fined under this title or imprisoned not more than five years, or both; but if the communication is intercepted for purposes of committing any further crime and such communication is intercepted by a law enforcement officer, the term of imprisonment imposed on the person convicted under this paragraph for such interception shall be not less than one nor more than five years."
It’s a federal offense and violation of this law is subject to substantial financial and criminal penalties. A violator is subjected to a fine and imprisonment of no more than five years.
The exception section states, "It shall not be unlawful under this chapter for a person not acting under color of law to intercept or attempt to intercept a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. However, no person may intercept a wire, oral, or electronic communication for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State."
Federal statute permits anyone who is a party to a recorded conversation, or has permission of at least one of the parties to the conversation to record the conversation. The subsequent sentence of that statute notes that a party may not record a conversation for the purpose of committing a crime, such as discussing a drug deal.
The federal law does not include language that differentiates between private, noncommercial calls and non-private calls, as does Alabama law.

The Legal Ramifications of Recording Without Consent

Penalties for Civil and Criminal Liability
Alabama’s recording law carries with it both civil and criminal consequences for violations. These consequences can be significant and may include monetary damages, the loss of evidence, and even criminal charges.
Civil Liability
If the parties do not have consent to record the conversation, this will typically result in civil liability for the defendant and create an opportunity for the plaintiff to recover damages from the defendant.
The Alabama law provides for the following civil remedies and penalties:

1. Damages. Any person whose oral or wire communication is intercepted, disclosed, or used in violation of Article 1 of Chapter 11 of Title 13A, or who is aggrieved by the interception, disclosure, or use of an electronic communication in violation of Article 2 of Chapter 11 of Title 13A, may in a civil action recover from the intercepting party whose violation is involved the following:

(a) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $10,000, whichever is the greater;
(b) Punitive damages; and
(c) A reasonable attorney’s fee and other litigation costs reasonably incurred.

2. Loss of Evidence. If a defendant in a civil case is accused of a crime that would have been admissibly recorded if not for a nonconsenting defendant’s interception, disclosure, or use of a conversation, violation of the recording law by the nonconsenting defendant may require the jury to find the missing evidence in favor of the plaintiff.

Criminal Liability
Not only can a violation of the Alabama recording law expose a party to civil liability, but it may also result in criminal charges for the offending party. Under Alabama law, interception of communications is a Class C felony.
A Class C felony can result in:
• A maximum of 10 years in prison
• A fine of up to $15,000
• Fines and penalties established by any law providing greater punishment
The Alabama statute provides for the following:
13A-11-30. Disclosure or use of contents of wire, oral, or electronic communications in violation of Article 1 of this chapter or Article 2 of Chapter 11.
(a) It is unlawful for a person to knowingly disclose or use the contents of any wire, oral, or electronic communication which has been intercepted, disclosed, or used in violation of Articles 1 or 2 of Chapter 11 of Title 13A.
(b) Disclosing the contents of a wire, oral, or electronic communication by:

(1) A public utility or telephone company in the normal course of its business to protect the rights or property of the carrier or to protect users of that carrier from unlawful use of the carrier.
(2) An operator of a switchboard, or an officer, employee, or agent thereof when necessary to provision service or protect the rights and property of the switchboard operator, (carrier), or the lawful users of such switchboard.
(3) A provider of electronic communications services, to an officer, employee, or agent of the provider for storage of the communications.

Exceptions to the Rule

Exceptions to the rule for recording conversations in Alabama: public events, absence of reasonable expectation of privacy, and more. There are a few exceptions to the one-party consent rule. Generally, an individual can still be liable if he or she is a party to a conversation that was either obtained illegally or if the party to the communication lacks a reasonable expectation of privacy. Alabama courts have dealt with a number of issues relating to the one party consent rule in the context of the expectation of privacy doctrine. What is important for you to understand is when a reasonable expectation of privacy exists . For example, several federal courts of appeal held that no Federal wiretapping law violation occurred where the person intercepting the conversation acted with the consent of the speaker and also where the speaker failed to close the door to a certain room, thus rendering the speaker visible and audible. Similarly the Alabama Supreme Court has ruled that it is reasonable in simple family dispute for children to hear tirade of their mother and father. In general Alabama has ruled that it is not reasonable for a person to expect his conversation with another person in a public place to be private. Other exceptions to the one-party consent rule include: Any recorded communication that is legal for all parties involved in the communication, as well as conversations in front of the media or at a public event.

How The Alabama Recording Laws Compare to Other States

Every state but Delaware has some type of statute setting out when or under what circumstances persons can legally record a conversation. Alabama applies the "two party consent" standard, allowing recording only if all of the parties to the conversation consent. This differs from the "one party consent" rule of many other states and applicable in a number of other countries that have laws on the books concerning recording conversations.
Nearby states have varied approaches to the issue, with many lacking any expressed recording statutes or case law. Arkansas, for instance, conforms to the "one party consent" model and permits recording by one party to the conversation, without the necessity for additional consent. However, Mississippi, Missouri and North Carolina all appear to apply the "two party consent" rule as outlined above in Alabama. Kentucky and Tennessee seem to fall somewhere in between these two extremes. Their statutes require consent of at least two parties, but as to the present context, "consent" has been interpreted by the courts to allow one-party consent when the recording was only "incidentally overheard and recorded." Participants in a conversation could thus record with permission from a party to the conversation but without permission of other parties when the recording is only incidental to the communication.

Best Practices for Recording: How To Do It Legally

Best practices for recording conversations legally in Alabama include obtaining the consent of those who will be recorded. Alabama law makes it a crime to record conversations, if the consent of those being recorded is not obtained before the recording begins. The law does not require that the person making the recording actually obtain the consent of the individual being recorded.
Therefore, once notice of the recording is provided by the person making the recording, the consent of the individual is all that is required. Consent of the person to be recorded may be obtained in a number of ways.
For example, if the conversation is one in which both party’s consent is required to be recorded , imagine you and a friend intend to meet up at a coffee shop to meet to talk with a third party "X". By informing the friend that the conversation is going to be recorded and by stating the reason or purpose for the recording, that would suffice under the law as notice. While there is nothing in the law to suggest that written consent is required, the "best practice" would be to confirm in writing that the conversation is going to be recorded and the purpose of the recording.
Notice, like consent, can be obtained orally. This is perhaps the simplest way to obtain notice. By telling that person that the conversation is being or going to be recorded at the outset of the conversation, notice has been provided. This however, is considered somewhat sloppier than something more formal like an e-mail.