Which law requires both parties to consent to the recording of a conversation?

The Wiretap Act, which is Title I of the Electronic Communications Privacy Act (ECPA), governs the real-time interception of wire, oral, and electronic communications. The federal statute establishes a "one-party consent" rule, which permits the recording of a conversation if at least one party to that communication consents. However, the Act explicitly allows states to enact stricter privacy protections. Several states have passed their own wiretapping laws that require "two-party" or "all-party" consent, making it illegal to record a conversation unless all participants agree. Therefore, the Wiretap Act is the foundational legal framework under which two-party consent requirements are established.

A. Health Insurance Portability and Accountability Act (HIPAA): This law establishes national standards to protect individuals' medical records and other individually identifiable health information, not general conversation recording.

B. Electronic Communications Privacy Act (ECPA): This is the broad parent statute. The Wiretap Act is the specific title within ECPA that directly addresses the rules of consent for real-time interception.

D. Stored Communications Act: This act (Title II of ECPA) protects the privacy of stored electronic communications, such as emails on a server, not the live interception of ongoing conversations.

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1. U.S. Department of Justice. (2009). Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (3rd ed.). Office of Legal Education Executive Office for United States Attorneys. In Section III.A, "The Wiretap Act, 18 U.S.C. §§ 2510–2522," the manual explains the consent exception under 18 U.S.C. § 2511(2)(d), noting it is a one-party consent rule but that "some states, however, require all parties to a conversation to consent to its recording."

2. 18 U.S. Code § 2511. Interception and disclosure of wire, oral, or electronic communications prohibited. Legal Information Institute, Cornell Law School. Paragraph (2)(d) establishes the federal one-party consent exception, which serves as the baseline that states may make more stringent.

3. Georgetown Law Library. (n.d.). Federal Law on Wiretapping & Eavesdropping. Georgetown University Law Center. The guide states, "The federal Wiretap Act and most state wiretapping statutes permit the recording of a conversation with the consent of a single party to that conversation... A minority of states have 'two-party' or 'all-party' consent laws." This confirms the Wiretap Act is the relevant law governing this issue.