Utah’s Recording Laws – General Information
In Utah, the legal framework surrounding the recording of conversations is governed primarily by the federal Wiretap Act, 18 U.S.C. § 2510 et seq., and Utah Code Ann. §§ 77-23a-1 through -7. Both federal and Utah state law provide for a varying standard of consent for the recording of conversations between private parties. Utah falls under the category of "two-party consent" jurisdictions as discussed below.
Utah Misdemeanor
As a general rule, a person in Utah may not record a telephone conversation without the consent of all parties to the conversation or of the parties to the conversation recorded. Utah Code Ann. § 77-23a-3(1).
This is one of Utah’s few criminal statutes that applies equally to the private sector and government. It constitutes a class B misdemeanor, carrying a maximum penalty of six months in jail and a $1,000 fine. Utah Code Ann. § 77-23a-6; Utah Code Ann. § 76-3-204. However, the consent requirement does not apply to: (1) those conversations where at least one party is outside of Utah; (2) a surreptitious interception from a third party unless unlawful under 18 U.S.C. § 2511(2)(a)(ii) or the foreign intelligence surveillance act under 50 U.S.C. § 1801 et seq.; (3) interceptions made pursuant to a search warrant; and (4) two-way radio transmissions intended only for the transmission of communications. Utah Code Ann. § 77-23a-3(2).
Federal Exception
Federal law under the Wiretap Act applies to any nontelephone electronic, mechanical, or other device that can intercept a wire or electronic communication. No person can use or sell any device that is primarily, or can be readily adapted, for the purpose of surreptitiously overhearing or intercepting a wire, electronic, or oral communication. 18 U.S.C. § 2512. However, there are three exceptions to this provision. First, the law does not prohibit the use of some devices used by a provider to provide electronic communication service. 18 U.S.C. § 2512(1)(a). Second, the law does not prohibit "any telephone or telecommunication service that is any component of a radio communication service" where the potential for interception by the user is a necessary feature of providing the service to users. 18 U.S.C. § 2512(1)(b). Third, the law does not prohibit the manufacture of any devices used for activities other than the intentional interception of wire , electronic or oral communications. 18 U.S.C. § 2512(1)(c).
Thus, the prohibition against interception in the Wiretap Act under federal law is limited to interceptions by persons making the interception, selling the device, or manufacturing the device for the purpose of interception.
Two-Party Consent and Common Carrier Exception
Whereas Utah is a two-party consent state, the federal Wiretap Act is a one-party consent law, which means that under the Wiretap Act, one-party consent to the recording of a conversation is sufficient. The tape recording of telephone calls between Utah and an out-of-state party, however, would require one-party consent in each party’s state. To obtain the consent of each party in a two-party scenario could be challenging. This result stems from 18 U.S.C. § 2511(2)(f) under the subsection concerning permissible interceptions:
Subparagraph (ii) is often construed as a common carrier exception, allowing entities to intercept and record phone calls. The FAA’s 2005 Wiretap Guidelines find that fiduciaries—such as an accountant, lawyer, or personal representative—who are hired or retained by a principal, authority, or estate, are entitled to use a recording device to serve such principal, authority, or estate. These interpretations suggest that a business can circumvent the general consent to recording requirement, by having the employee obtain the consent of a customer or other employee.
Federal law under the USA PATRIOT Act protects from liability those providers of interactive computer services or electronic communications service who disclose the contents of communications by or as authorized by persons who are part of the chain of transmission of the communication. 18 U.S.C. § 2702(b)(1)(D), (c)(1).
The Fourth Amendment
Whether the presumption against recorded conversations would impact the successful assertion of a defense based on the Fourth Amendment to the U.S. Constitution remains to be seen, but runs along the lines of the Supreme Court’s holding in Katz v. United States, 389 U.S. 347, 351 (1967) (i.e., the Fourth Amendment protects people, not places). Thus, the mere fact that Utah requires the consent of all parties likely will not automatically preclude a successful argument that a recording was made in a place where a person has a reasonable expectation of privacy.
Consent of One Party or Two Parties
One-party consent means that if one party to a recorded communication consents to the recording, the recording is legal. Two-party consent means that both parties to the recorded communication must consent to the recording to make it legal. Utah is a one-party consent state, which means that so long as one party to the recording consents, the recording is legal. Consent may be given based on implied consent by a party continuing to speak through a line that they know is connected.
When Consent to Record is Permitted
In addition to these circumstances, if there is a failure to comply with the disclosure and consent requirements of the UCA, the admissibility of the recorded evidence may be subject to challenge. Consent of the party to be overheard is a powerful defense against admission. The statute provides an exception to the general prohibition against secret recordings: "This chapter does not prohibit any person from recording by any means any interaction that the person is having or has had if the person participates in the interaction." UCA 76-9-301(8)(b).
This is why under UCA 76-9-402.5 and related statutes it is not "illegal" under Utah law to record a conversation that you are indeed a party to if you do so in a place where you have a right to be. In fact, this mirrors federal law on secretly recording phone calls. See, 18 U.S.C. § 2511(4)(a)(i) ("It shall not be unlawful under this chapter for a person … (i) to intercept or obtain access to an electronic communication made through an electronic communications system … to which that person is a party ….") (emphasis added). 18 U.S.C. § 2511(4)(b) goes on to state that such recordings of electronic communications even made for a commercial purpose "shall not render illegal the utilization of any pen register or any tap or any other device which is attached to a telephone line and used exclusively to record the time and duration of the telephone call."
A "pen register" is of course where you put the number in, you can see the duration of the call, but you cannot see the actual conversation. In some cases, these pen registers might be able to record length of call, and who they were with, but there are some sophisticated recording devices where you can actually hear both sides of a conversation without disclosure.
The recorded conversation must have taken place in a public (i.e. not private) context, but one of the parties interviewed will have to consent and you will need to show that the recording was not for purposes of blackmail, coercion, or extortion. Many times police will use these records as evidence against people who are trespassing or and disobeying the law, and thus, the recording is not necessarily in "bad faith." But if it can be shown you did this for purposes of a class action, or stalking, extortion, etc. or you did it surreptitiously at a place where you should not have been, the evidence can be excluded.
If it has been shown that a disclosure and consent requirement is violated, the evidence may be admitted anyway, as long as the court believes it to be in the interests of justice and equity. See UCA 76-9-402.5(4) ("… it is admissible in a civil or criminal proceeding if a court concludes that it is in the interests of justice and equity to admit the evidence.") It is best to consult a lawyer.
Penalties – When You Can’t Record
If a party is injured during an illegal recording, then the injured party could sue and recover damages. An injured person may recover damages for emotional distress damages that are proximately caused by their discovery of a surreptitious video/audio recording, such as personal humiliation, embarrassment, and mental suffering. Mental distress damages include such concepts as fright, dishonor, disrepute, wounded pride, accusation of dishonorable conduct, injury to feelings, mental suffering, and the like. Damages for emotional distress may also include damages for aggravation, annoyance, inconvenience, embarrassment, mortification, humiliation, present bodily pain, future bodily suffering, physician’s expense, nursing expenses, hospital charges, and other expenses incurred or reasonably certain to be incurred in the future. A court could also award punitive damages based on the harm caused by the illegal recording.
Likewise, recording conversations in Utah without the consent of all parties to the conversation can lead to criminal liability as well. Utah Code 76-9-301 states that "Any person who intentionally, and without consent of all parties to the conversation, intercepts a wire or electronic communication is guilty of a class A misdemeanor." In fact, if the recording is done with a "device designed to be carried or worn," such as a wire, or phone, or any other electronic device, the offense is enhanced to a third degree felony which carries a penalty of up to five years in prison and fines up to $5,000.
What This Means for Your Business and Your Employees
When it comes to business and employment matters, there are a few things to keep in mind when it comes to recording calls, emails, or text conversations.
If you are going to rely on recording any conversation for any employment or business purpose, a best practice is to obtain consent from the other party prior to any such conversation. For instance, an employer may record internal communications as a part of their ongoing employee monitoring efforts. This can deter bad behavior and create a deterrence against violation of workplace policies. Ongoing employee monitoring is something we often see in the context of non-compete disputes as well because there is a duty to disclose that modern awareness has become a primary method of conduct and is expected by all employees. This forward-looking obligation can also extend to updating and extending non-competes.
Sometimes employers will use recording devices to record meetings for various purposes (i . e. disciplinary meetings, suspension meetings, etc.). It is best to inform the other party that the meeting or call is being recorded before the meeting takes place and to document that information in the meeting memo or notes to ensure the other party knew the conversation was being recorded.
One thing that might be very helpful for businesses, and in particular, attorneys or human resources professionals who conduct investigations is to record interviews. That way, they do not have to worry about tip-toeing around memory gaps or what the other party actually said. They can just refer directly to the video or audio of the call or conversation. This again, goes to the importance of obtaining consent to record those calls or conversations.
There are not many downsides to recording your conversations other than the requirement to disclose that information after you record it. Simply disclose that information as soon as you are able.
Top Tips for Recording Legally
To legally record a conversation in Utah, it is best to have consent from all parties. Utah does not have a two-party consent requirement but consent of all parties is suggested. Getting that consent can be easier in many cases than you think.
In some situations, the person you want to record might agree to it in a casual or off-handed way that makes it seem like permission was given. A simple, "Hey, can I record this conversation," may be enough. If the reply is yes, you are good to go. If it is no, be sure to confirm that they wouldn’t mind you recording if you were to get a court order. Getting that person to sign a consent form of some sort is also a great idea. Written consent puts you in a much better position should the issue of illegal recording arise later.
If you don’t have consent, recording the call or conversation anyway could land you in trouble and even result in charges of up to three years in prison or $5,000 in fines. But, there is a loophole by which you might legally be able to record the call through the use of a device which can transmit communications to you (i.e., your cell phone). You may be able to legally do it under a legal principle that is often referred to as the "one party consent exemption." It is a tricky little loophole and we suggest proceeding with caution. That is also a good basis for getting a consent waiver. Even in a situation where you think the other party is willing to record the conversation to protect themselves, they might be willing to sign a waiver and give you permission to do so. That way the recording is entirely legal and you both have copies of the recording for future reference.
Tech can be a great ally in obtaining consent. Be aware that not every app will allow you to share a recording without first obtaining consent. Understand how the app you are using works or look for one that does so will save you a headache later on.
Cases and important legal references
The issue of recording conversations without consent in Utah has been addressed in several notable cases over the years. One such case is Surroca v. Tax Commission, 917 P.2d 1073 (Utah 1996), where the Utah Supreme Court held that a taxpayer was not entitled to privacy rights when communicating with a tax commission employee, because a reasonable person in the employee’s position would expect their communications to be subject to public disclosure. The court noted that the public disclosure of certain types of communications served the public interest, and therefore did not give rise to a reasonable expectation of privacy.
Another important case is State v. Peterson, 744 P.2d 1032 (Utah 1987), in which the Utah Supreme Court ruled that a conversation recorded without consent did not constitute an illegal interception under Utah law because there was no violation of privacy . The court held that where at least one party to the communication consented to the recording, the recording did not violate Utah law.
Furthermore, in State v. Batten, 983 P.2d 932 (Utah 1999), the Utah Supreme Court addressed the issue of the admissibility in court of evidence obtained through the illegal recording of a private conversation. The court held that such evidence, while obtained in violation of Utah law, could still be admitted as evidence at trial if it did not violate the defendant’s Sixth Amendment rights to confront witnesses against them.
These cases highlight the evolving nature of Utah’s recording laws and the courts’ interpretation of the law in light of new technological advancements. As new cases arise, it is likely that the law will continue to develop in the coming years.