Generally speaking, recording someone without their consent is a civil rights issue, and the laws that govern this issue can vary from state to state.
Virginia, for example, is a “one-party consent” state.
This means that you can record someone’s private conversation, provided that at least one party has knowledge of the recording device or software.
There are actually several laws in the Virginia Code (and federal law) that talk about this issue.
In this article, we’ll briefly explore the basics of Virginia’s wiretapping laws.
However, it’s important to note that the reason you want to record will greatly affect how you choose to record, especially if you want to use the recording as evidence.
Similarly, a number of other factors can greatly complicate your case, such as if you’re trying to record someone in another state.
Basically, regardless of the specifics of your case, it’s highly recommended that you speak with an attorney about the legal ramifications of your actions before you record someone without their consent in Virginia.
At the barest of minimums, you should do your homework on whether the recording breaks any state or federal laws.
Virginia Recording Laws and Wiretapping Basics
Virginia actually has several recording and wiretapping laws.
You can find most of them in the chapter titled “Interception of Wire, Electronic, or Oral Communications,” specifically in § 19.2-61 through § 19.2-70.3.
Most relevant to this conversation is the second law (Va. Code § 19.2-62), which broadly lays out the boundaries and limitations for recording conversations in Virginia.
Basically, this law criminalizes any attempt to intercept, record, or transmit “any wire, electronic, or oral communication” without the consent of at least one party to the conversation.
Further, it notes that doing so qualifies as a Class 6 felony, and is punishable by both fines and/or jail time.
A Quick Look at Federal Law
At the federal level, 18 U.S.C. § 2511 basically sets a nation-wide mandate that requires at least one party’s consent when recording phone calls or conversations.
Most of the state-specific laws are variations on this law, usually as a means of imposing harsher penalties or, in the case of all-party consent states, as a means of requiring that all parties are aware of the recording device or software.
This law also criminalizes the act of recording conversations for criminal or tortious purposes.
Exceptions to Virginia’s Recording Laws
There are multiple exceptions to Virginia’s recording laws.
For example, telephone calls to police, emergency services, and other government offices are often recorded, but do not require the explicit consent of either party.
Similarly, it’s perfectly fine to record conversations in locations where there is no reasonable expectation of privacy, such as in a public space or other outdoor area.
Virginia Recording and Wiretapping Laws FAQ
Can I record a conversation in a public place?
This is a bit of a grey area, and will largely depend on how you define “public,” as well as how you choose to record.
The Virginia Code protects oral speech when the speakers have an expectation that “such communication is not subject to interception under circumstances justifying such expectations.”
Put another way, if a reasonable person would conclude that the conversation is “private” in nature, you can’t record it.
However, such cases are incredibly fact-specific, so it’s always best to err to the side of caution when recording audio in public.
Can I use a recorded phone conversation as evidence in family court?
The answer to that question depends on far too many factors to cover in an article such as this.
Basically, recorded conversations may be used in a civil trial so long as all parties are aware that the conversation was being recorded.
However, there are a number of exceptions to this rule.
For example, divorces follow different rules from other civil cases that can vary by the jurisdiction, and sometimes even by the judge.
Similarly, evidence that was gathered in violation of the rules outlined in the Virginia Code is also inadmissible in court.
Put another way, there is a tiny, case-specific grey area when it comes to recorded evidence being admissible in court.
For this reason, it’s highly recommended that you speak with an attorney about whether or not your particular evidence is admissible (or, more importantly, legal in the first place).
Can I sue for illegal wiretapping?
In general, yes.
The Virginia Code notes that any person whose wire, electronic, or oral communication is intercepted, disclosed, or used in violation of the wiretapping chapter:
“…shall (i) have a civil cause of action against any person who intercepts, discloses or uses, or procures any other person to intercept, disclose, or use such communications, and (ii) be entitled to recover [damages] from any such person [as outlined later in the statute].”Virginia Code § 19.2-69
These damages can include things like actual damages (proportional to the damages you incurred as a result of the wiretapping), punitive damages, and reasonable attorney’s fees.
Virginia is a one-party consent state.
This means that you can (usually) record a conversation where at least one person consents to, or knows about, the recording.
If you are participating in the conversation, you count as that one party, and (usually) don’t need to inform the other party.
However, if you want to use this communication as evidence in court, you’ll have to follow a higher set of standards and rules.
Finally, if you believe that your rights have been violated by another person’s recording practices, you should contact an attorney about your case.
As you’ve probably seen by reading this article, Virginia’s recording and wiretapping laws are very complex, and there are as many exceptions as there are rules to follow.
It is always in your best interest to speak with an attorney or other legal representative if you are in any way unsure about your case.