Insights Into NJ’s Law Regarding Recording Conversations

The Ins and Outs of NJ’s Recording Law

In New Jersey, laws governing recording conversations are outlined in the New Jersey Wiretapping and Electronic Surveillance Control Act of 1968. This legislation provides a legal framework for the recording, interception, and disclosure of certain communications in the state. In New Jersey, recording conversations without consent can lead to civil and criminal penalties.
Under this New Jersey statute, it is a second-degree crime to lawfully record telephone conversations, such as cell phone conversations or landline conversations. The reason that cell phone recordings are also considered illegal is because the New Jersey Wiretapping and Electronic Surveillance Control Act of 1968 defines "wire communication" as "any oral communication." Oral communication is defined as "any transfer of signs, signals, writing, images, sounds, data, information, and intelligence of any nature transmitted in whole or in part by a wire, cable, or other like connection between or among a number of different points . " This language is so broad that it would even include the transmission of conversations through the internet. Considering this language, it makes sense why New Jersey recording laws are so restrictive.
More specifically, under the New Jersey statute, it is unlawful for anyone to "use, employ, or disclose in any manner" a wire, electronic, or oral communication intercepted or recorded without "the consent of all parties to the communication." What this means is that, under the state’s laws against illegal recording, at least one party should always provide consent. Anywhere from one to all of the parties can then record and/or distribute the tape.
At the same time, however, the laws against illegal interception of recordings are not absolute. New Jersey recording laws do allow for some exceptions. The main exception stated in the statute is if the recording or interception is done by or with the consent of an investigative or law enforcement officer in the "performance of his official duties."

Exceptions to Recording Law in New Jersey

Under New Jersey’s wiretap law, it is generally a crime for a person to record or eavesdrop upon a wire, electronic, or oral communication in which that person is not a participant. However the law also contains a number of exceptions for specific situations. As an example, it is generally permissible to make an audio recording at a specific "public place" unless the person from whom the recording was made has a reasonable expectation of privacy. This exception to the law was upheld in a 2009 State v. Wint case in which a local government employee from Lakewood, New Jersey, was able to make a video recording of a government employee speaking to another government employee in a public park wearing a town uniform at a time when the employee was being paid. As such, an expectation of privacy in the conversation was not held to exist and the information obtained in the recording was used by the prosecutor to indict the Lakewood employee on charges of theft and conspiracy. Essentially, if you and another person are speaking to each other in a public place where you know you could be overheard by passersby then a reasonable expectation of privacy likely does not exist outside of special circumstances. There are a number of areas where you might not be able to record conversations legally within the state of New Jersey. For starters, there is a law prohibiting some types of hidden video recording in bathrooms. Like the rules against recording audio, this law prohibits certain types of recording even where the participants could have no reasonable expectation of privacy under New Jersey’s Wiretap Act, so this exception would not apply to, for example, a screeching woman who is yelling at her boyfriend in the bathroom. As such, it thus becomes likely that unless the woman is screaming about a murder that only you and she know about, you would likely still be breaking the law by recording her without her permission. In addition, if you are able to obtain permission from the other parties to a conversation to record and publish the conversation then you will not be violating the law on this basis, especially if all parties are informed and give consent that the conversation is being videotaped for broadcast outside of the group in which it was created. There are, of course, many other exceptions to the wiretap act which touch upon areas such as law enforcement activity (provided that a court order is first obtained), phone calls from different countries, and other areas.

Consequences of Illegal Recording in New Jersey

As indicated above, consent of both parties is needed to legally record a conversation in NJ. The penalties for not having both parties’ consent to the recording can be severe and may include both criminal and civil consequences. A first offense is considered a disorderly persons offense which is punishable by after of up to six months in jail as well a fine of up to $1,000. A second (or subsequent) offense under N.J.S. 2C: 14-2(b)(3) is a fourth degree crime. The penalties for a fourth degree crime in NJ include a possible prison term of up to 18 months as well as a fine of $10,000. The party whose conversation was recorded without his or her consent can also sue the person who recorded the conversation. As per N.J.S. 2C: 14-10(c): The civil action shall be commenced within 2 years of the date of the violation. In addition to any other civil remedies available to a party whose privacy was invaded under this act, a civil action may be brought for relief . . ., including the use of agency rules and enforcement provisions, where appropriate, against any one or more of the following persons: a person or party who, knowing or having reason to know of the facts and circumstances of the initial unlawful interception, disclosure or use of a wire, electronic or oral communication, intentionally causes a similar unlawful interception, disclosure or use by a person or party under his or her control, such as a supervisor of an employee acting directly or indirectly, or the initial unlawful interceptor or discloser of the communication. . . . A person or party who suffers legal injury in a situation in which prohibited surreptitious interception or disclosure occurred, because of a violation, is entitled to recover, from a party in violation of the prohibited conduct, either of the following: (1) liquidated damages equal to the greater of $100 a day for each day of violation or $10,000; or (2) actual damages suffered as the result of the violation. Unless otherwise specifically provided by law, no other damages shall be available. It is important to read the entire statute because there are few exceptions to the restrictions on recording conversations and video in NJ. For instance, New Jersey Courts have a long history of ruling that recording conversations in a courtroom context is not prohibited. Further, the state’s Wiretap Act does not prohibit the use of a recording on TV news programs so long as the news program has informed the public of the recorded incidents. Thus, news cameramen do not need the consent of people who are recorded in public in order to disseminate those recordings to the public.

NJ’s Law Compared to Other States

Currently, there are eleven states that have two-party consent requirements when it comes to recording, including Colorado, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.
New Jersey is consistent with other states in not requiring a two party consent to record, such as in California, Georgia, Minnesota, Texas, and Utah. The theory is that in these states, a person does not need to get consent from the other party before recording the transmission so long as the communicator is a party to the communication. Specifically, the relevant statutory language in N.J.S.A 2A:156A-3, N.J.S.A. 2A:156A-4, and N.J.S.A. 2A:156A-5 makes it clear that a participant can record a communication.
Other states, such as Hawaii, North Dakota, and South Carolina, require all-party consent but only regarding telephone calls .
As discussed above, under the Atlantic City v. Beasley court case, New Jersey’s statute on recording communication does not identify a director recording in a public place as a "person," and therefore, a director recording a conversation without the consent of another individual can lead to a civil lawsuit and damages. If found liable for invasion of privacy or trespass, the director can be sued for actual damages, along with the mental anguish suffered by the aggrieved party, punitive damages for malicious invasion of privacy, and reasonable attorney fees. That said, it has been over a decade since Atlantic City v. Beasley ruling and I have never seen a lawsuit for invasion of privacy made against a director even when they filmed a public area.

Tips for Recording Conversations Without Issue

Many New Jerseyans have smart devices or applications on their phone, such as Siri and Hey Google, which allow their phones to record conversations with their voice. So if you use these convenient features or applications, you should review the following list of practical tips for legally recording conversations. There are many caveats to these tips, which are discussed elsewhere in this blog. The best practice is always to obtain consent from all parties to avoid any issues.

• If you are going to be conducting a phone interview for a publication, have them call your phone so they can be recorded.
• Send a group text to obtain everyone’s consent to record conversations and save it. While not foolproof, a group text is an easy way to obtain consent from everyone on the group chat so everyone knows the group text is being recorded.
• If you are selling a product or service for a business, your disclaimer for the product or service should state that conversations are being recorded.
• If you are hosting a podcast program, comply with the rules and regulations of the platform through which you offer your podcast, whether it is on the air, on the Internet or through a podcast app like Spotify.
• If someone calls you and refuses to consent to be recorded, do not record the conversation.

Recent Case Law and Examples in NJ

While New Jersey does not require persons to consent to video recording in certain public places, it does require parties to consent to audio recording in most situations. The threshold for protection for telephone calls and conversations is extremely low and requires only that the recorded party be unable to detect the recording due to the use of electronic equipment. In State v. Fisher, 447 N.J. Super. 376 (App. Div. 2016), the defendant recorded a telephone call from an investigator at the Atlantic County Prosecutors office during a court proceeding while the accused was in jail. The investigator did not inform the defendant of the recording but was informed that the recording was being made as the conversation began which was described as inaudible.
The Court held that defendant sufficiently demonstrated that a reasonable expectation of privacy would encompass a conversation between himself and a representative of law enforcement, without his consent, that was recorded in a place where he would have presumed a normal conversation would remain private. The court also found that the phone and essentially the call did not belong to the jail or the other party but to defendant. The court found that the recorded conversation was distinct from the broader concept of a conversation within the prison system. Rather, it addressed a specific dialogue between the investigator and the defendant about his response to the predisposition study. Overall, the court found that a reasonable expectation of privacy would encompass a conversation between himself and a representative of law enforcement, without his consent , that was recorded in a place where he would have presumed a normal conversation would remain private.
The New Jersey Supreme Court has recognized a common-law right to review "any video or video images produced by a traffic camera or similar device" under certain circumstances. See Hennessey v. Recording Indus. Ass’n of Am., 87 A.3d 975, 988 (N.J. 2014); see also State v. Barner, 362 N.J. Super. 44, 51 (App. Div. 2003). In Hennessey, plaintiff intended to use security footage from the state’s red light cameras to defeat the state’s claim that he had been speeding through a red light as well as use the footage to get insurance reimbursement for the damage he caused to his own car in a crash. The Appellate Division noted that the employer that leased the cameras to the state did so with the intent of maintaining the equipment and recording service, as well as producing and collecting fees from violations. New Jersey law permits access to government public records. See N.J.S.A. 47:1A-1 et seq. The legislature’s recognition of the important role that government records play "in furthering the public’s right to know will inure to the benefit of the public and governmental agencies alike." See Courier Post Co. v. City of Camden, 215 N.J. 200, 209 1 (2013). The Appellate Court held that the Hennessey and Red Light Laws do not "render a defendant’s discovery rights meaningless" under State v. McKallip, 153 N.J. Super. 31, 35 (App. Div. 1977). The Court found that McKallip was distinguishable as that was a view of discovery governing a trial court’s authority to approve a defendant’s request for a bill of particulars.