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Legal Memorandum: Recording Phone Conversations in MN and CA

Issue: Is it permissible under Minnesota law to tape record phone conversations with an individual in California, without disclosing that the call is being recorded?

Area of Law: Communications & Media Law
Keywords: Tape recording phone conversations; Consent
Jurisdiction: California, Minnesota
Cited Cases: 526 N.W.2d 402; 180 F. Supp. 2d 1089; 424 N.W.2d 815; 355 U.S. 107; 133 Cal. Rptr. 573
Cited Statutes: Minn. Stat. § 626A.02, subds. 1, 4, 5, § 626A.01, subd. 5, § 626A.01, subd. 6(3), Minn. Stat. § 626A.02, subd. 2(d); 18 U.S.C. § 2511(1), § 2511(1)(a), (2)(d); Cal. Penal Code § 632
Date: 09/01/2009

Generally speaking, under Minnesota law, a person who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic, or oral communication is subject to civil and/or criminal liability.  Minn. Stat. § 626A.02, subds. 1, 4, 5 (2008).  “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any “electronic, mechanical, or other device.”  Id. § 626A.01, subd. 5.  Importantly for present purposes, “electronic, mechanical, or other device” does not include a device that “is specifically designed to only record conversations to which the operator of the device is a party.”  Id. § 626A.01, subd. 6(3); see also Dep’t of Human Rights v. Spiten, 424 N.W.2d 815, 820 (Minn. Ct. App. 1988) (stating that Minn. Stat. § 626A “makes interception of wire or oral communications illegal under certain circumstances,” but that interception is defined to occur only “through the use of any electronic, mechanical, or other device,” and that the definition of “electronic, mechanical or other device” excludes devices designed to record “conversations to which the operator of the device is a party”; for that reason, and because the interceptor there fell within one of the statutory exceptions, the facts in that case did not constitute an interception, and evidence derived from the telephone recordings was admissible) (citing Rathbun v. United States, 355 U.S. 107 (1957) (interception requires an unauthorized third party listener)).

Moreover, as […]

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