Should You Tape?

Should You Tape?


Can you record your conversation with your coworkers without them knowing? Can you plant a listening device in your boss’s office? These are very different scenarios. Ruling in Lopez v. United States, Supreme Court Justice John Harlan sided with IRS agent Roger S. Davis, who recorded an innkeeper without their knowledge as Davis suspected they would offer him a bribe. Since the “device was used only to obtain the most reliable evidence possible of a conversation” in which the person using the hidden tape recorder “was a participant,” the one-party taping was legal. This holds for private citizens and government employees alike, though states or employers may have their own laws against the act. The use of listening devices, or the recording of conversations in which the taper is not present, is illegal. In some cases, the smoking gun may be best caught on tape. Read the rule to learn your rights surrounding taping.

Consent States

Practice Tips

  • Do not violate the federal or state wiretap laws when taping. You cannot lawfully plant a bugging devise or tape a conversation that you are not a party of.
  • The best one-party taping case is Mosbaugh v. Georgia Power Co., 91-ERA-1/11 (Nov. 20, 1995), where the secretary of labor decided that one-party taping constituted a protected activity for which an employee could not be fired.
  • See for DOL whistleblower cases.


Under federal law, and in most states “one-party” taping is permitted. This means that only one of the parties to a conversation has to consent to the tape recording, while other parties may not have any idea that taping is ongoing. An excellent summary of the federal and state laws government one-party taping of conversations was published by Alma Rosina, “Call Recording Laws by State—Everything You Need to Know.” (Feb. 14, 2022).

Court Cases on One-Party Taping:

  • Lopez v. U.S., 373 U.S. 427 (1963) (Supreme Court permits one-party taping)
  • Omnibus Crime Control Act, 18 U.S.C. § 2511(2)(d) (federal law permitting one-party taping)
  • Reporters Committee for Freedom of the Press (online publication) (state-by-state review of one-party taping laws)
  • Heller v. Champion International, 891 F.2d 432 (2nd Cir. 1989) (one-party taping permitted for gathering evidence of discrimination)

Cases finding one-party taping not only legal, but also a potentially protected activity:

Frequently Asked Questions

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