By Jed McKeehan
Let’s say you are having a phone call with a contractor about work that went badly, or perhaps you are meeting with your child’s other parent and you are worried that the conversation will later be described very differently. Can you pull out your phone, press record, and keep the conversation without telling the other person?
In Tennessee, the answer is generally yes, as long as you are actually part of the conversation. Tennessee is commonly called a one-party consent state. Tennessee Code Annotated section 39-13-601 allows a private person to record a wire, oral, or electronic communication when that person is a party to the communication or when one party has already consented. If you are participating in the conversation, your own consent is the one consent that is required.
That does not mean you can record every conversation you can hear. If you leave your phone in a room to secretly record two other people after you walk out, you are no longer relying on your own participation. That can cross the line into illegal interception. The law also does not protect a recording made for the purpose of committing a criminal or wrongful act, and special rules can apply to certain business calls.
Another complication comes up when the people are in different states. Some states require everyone on the call to consent. A phone call that starts in Tennessee and ends in one of those states can create a messy choice-of-law problem. If a call crosses state lines, the safest practice is to announce that the call is being recorded and get everyone’s consent.
Also remember that legal and wise are not always the same thing. Secretly recording a spouse, employee, client, or friend may destroy whatever trust remained between you. A workplace rule, court order, or professional duty may create consequences even when the recording itself does not violate Tennessee’s criminal law.
Finally, a recording is not automatically admissible or convincing in court. You may still have to show that it is authentic, complete, and relevant. An edited clip that leaves out the rest of the conversation may hurt more than it helps.
So, in Tennessee, you can usually record your own conversation without giving the other person a warning. Just do not confuse one-party consent with permission to secretly record conversations in which you are not involved.
Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties. He works in many areas, including family law, criminal, and personal injury. Visit attorney-knoxville.com for more information about this legal issue and other legal issues.
