Recording a Federal Agent Interview: What the Law Allows.

Is It Legal to Record a Conversation with Federal Agents?

Under 18 U.S.C. §2511(2)(d), federal law generally allows one party to a conversation to record that conversation. The statute states that “It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” This is often referred to as the federal “one-party consent” rule.

Is This All I Need to Know?

The federal “one-party consent” rule under 18 U.S.C. § 2511 is not all you need to know. While § 2511(2)(d) permits a person not acting under color of law to record a conversation to which he or she is a party, it does not shield that person from stricter state recording laws. As a party to the interview you have statutory authority to record under 18 U.S.C. § 2511(2)(d), but a stricter state all-party consent law may still require the agents’ consent.

Is the Interview Mandatory?

A requested federal interview is generally a voluntary activity. While you are subject to the agent’s control during the interview, if you are not in custody, you may decline to participate without any negative consequence.

Can I Condition My Participation on Having Counsel Present?

The most critical, and most effective, way to maintain control over an interview is to condition your participation on having an attorney present. “I am willing to participate on the condition that I have counsel present,” is a request that federal agents generally comply with.

Can I Record My Interview as a “Public Officer” Observation?

While recording law enforcement officers in public has been upheld as protected behavior in some contexts, these cases do not necessarily apply to private audio recordings during interviews indoors. Even in public settings, these protections are subject to reasonable time, place, and manner restrictions.

Which Recording Law Applies to My Federal Interview?

The one-party consent rule under 18 U.S.C. §2511(2)(d), generally requires no notice to the parties to whom the party who consented not to communicate. It, however, excludes recordings made with a criminal or tortious intent. The applicable state law could depend on (i) the location of the person who has the recording device; (ii) the location of the persons being recorded, or (iii) the location of the call itself. This is true even if the call or interview is in-person.

What Type of Recording Is Authorized by the State Laws?

Some of the recording statutes (i.e., those of California, Pennsylvania, and Florida) say that they only apply to “confidential” or “private” communications. Federal law imposes a comparable requirement for in-person conversations: 18 U.S.C. § 2510(2) reaches only an oral communication uttered by a person exhibiting an expectation that it is not subject to interception under circumstances justifying that expectation. This is why, in some contexts, individuals may record conversations in public without their consent.

What If I Am on the Phone with a Federal Agent?

If you are on the phone with a federal agent, the applicable state law will depend on the location of the call and the locations of the federal agent(s) involved. It is likely that the applicable laws of more than one state will apply. While it is true that some states have “one-party consent” statutes and others have “two-party consent” statutes, the specific conditions that must be met before someone may record a conversation vary from state to state.

What Are the State Consent Statutes?

The state consent statutes are those which set forth the conditions under which recordings may be made (i.e., either “one-party consent” or “two-party consent”). Some states define the “protected conversation” and “required consent” differently than others. For example, Minnesota’s two-party recording statute prohibits the recording of any oral communication “ without the consent of all parties to the communication.” (See, e.g., Fla. Stat. § 934.03.)

Is There a First Amendment Privilege to Record Law Enforcement Officers?

Several federal circuits have recognized the First Amendment privilege of recording law enforcement officers in public. While this is one of the few areas in which the courts have recognized an exception to the state consent requirements, it does not apply here. As discussed above, the record of an interview is an oral recording. It does not fall within the constitutional protections.

Is It Required That I be a Licensed Investigative Journalist to Enjoy the First Amendment Privilege to Record Law Enforcement Officers?

Generally, you do not need to be a licensed investigative journalist to record federal agents; as long as the agents are performing their duties in public, you have a right to a First Amendment recording. However, for a law enforcement officer to have a constitutional duty to allow you to record, you have to be in a public location. The law does not protect you for recordings made in private settings, particularly when it is with a federal law enforcement officer.

Can I Insist on Recording Before I Answer Questions?

No. 18 U.S.C. § 2511 is a federal statute that generally permits a party to a conversation to record it without notifying the other parties. It does not establish a general affirmative right to record interviews with law enforcement officers.

If it is Lawful for Me to Record, Can the Agent End the Interview?

Yes. For an agent to be entitled to stop a voluntary interview is far less than the effort it would take for the agents to accept your conditions. While you may be entitled to make a record of the interview, this doesn’t compel the agents to continue an interview.

Can the Agent End the Interview Rather Than Accept My Conditions for Counsel or Recording?

Yes. If you are the person who controls the interview, which you are in a noncustodial setting, the agents are not at any expense to keep interviewing you. If the agents have a problem with your request to have counsel or to record the interview, the agents can end the interview then and there, and the federal investigation will continue.

What Should I Do if the Agents Agree to Let Me Record the Interview?

If you are in a jurisdiction that requires all parties to a conversation to consent (i.e., that you recording the interview and they recorded their side as well), then you should make the agents’ consent explicit. That is, the agents should state their consent to be recorded.

What If the Agents Refuse to Let Me Record My Interview?

If the federal agents refuse to let you record, but you are willing to interview (preferably with counsel present), then you should ask them if you are willing to hire a court reporter to create a verbatim record. The agent may agree, or she may simply decline. In this case, you are not obligated to accept.

What if Neither Option is Available?

If neither of the above options are available, and you still want to participate in the interview, your best option is to have counsel be present during the interview and take contemporaneous notes. These notes will then be used as a memory aid during trial if necessary.

Are Recording Devices Allowed in U.S. Courthouses and in Other Detention Facilities?

Generally, no. However, these rules are independent of the Wiretap Act. For example, the United States District Court for the Northern District of Texas issued an order that prohibits the use of a recording device within the courthouse unless prior authorization is obtained.

Can I Bring a Camera or a Recording Device to the Interview?

It depends on where the interview is taking place. If it is taking place in a secure federal facility, then recording devices may be prohibited. It is up to the security personnel to inform you as to any ban or limitation that they have for recording devices before entering the facility.

Do Video, Transcription Applications, or Speakerphone Use Change the Rules for Recording Interviews with Federal Agents?

Does the One-Party Consent Rule Allow for the Absent Nonparticipant to Record and Transcribe the Interview?

Under federal law, the one-party consent rule does allow an absent nonparticipant to record and transcribe the interview, because 18 U.S.C. § 2511(2)(d) permits interception where one of the parties has given prior consent. A state that requires all-party consent may still require every participant’s agreement.

Does Recording Video Changes the Rules?

When you record video on your smartphone, the rules regarding audio consent also apply. The reason is the device records both the video and audio of the conversation. However, silent video does not violate audio interception statutes. Nonetheless, recording silent video can still be against facility restrictions.

What About Recording Security Cameras?

Recording security cameras may be a gray area. However, if a recording security camera captures audio, it is possible that this would violate the audio consent statute. However, security cameras only capture audio in certain situations.

What About Using Transcription Applications during the Interview?

Transcription applications will transcribe the conversation in real time, and these applications will usually create a recording in the process of transcribing. In this case, the individual who chooses to transcribe the conversation will need consent from the federal agent(s) before doing so. If the application saves the recording in the cloud, this could also be a violation of the federal Wiretap Act.

What About Use of a Speakerphone During the Interview?

Using a speakerphone will not be considered as “recording” or “wiretapping.” However, using a speakerphone may be a “disclosure” of a communication. If the speakerphone discloses a federal interview to others who are present in the room, you could be in violation of a recording statute.

Does a Person’s First Amendment Right to Record Law Enforcement Officers Override Courthouses, Job Workplaces, or Other Facility Restrictions for Using Recording Devices?

The First Amendment privilege for recording law enforcement officers does not override courthouses, job workplaces, or other facility restrictions. Again, recording in public is the key. If the recording is not in public, the First Amendment privilege cannot be invoked.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

Why Is a Lawyer Safer Than Making My Own Recording?

How Is a Voluntary Interview Different From a Custodial One?

When federal agents want to interview a suspect in a federal investigation, they may visit him or her unexpectedly and without prior notice. This is commonly known as the “doorstep interview.” In this situation, the individual being interviewed is not in custody. As a result, if the individual does not wish to participate, he or she may decline to do so without being liable to federal criminal charges under 18 U.S.C. § 1001. However, the moment an individual becomes “custodially” interviewed, the situation changes entirely.

What Is Miranda Protection?

The federal and state recording statutes have limited applicability. The same is true with the protection you receive under the Constitution. You have experienced Miranda when you have heard the famous reading of the “Miranda Rights” as a suspect in custody. These protections only apply to a “custodial interrogation.” When you are subject to the constraints of an interview that is custodial in nature, the law affords you maximum protection. However, when you are not in custody, your legal protections are vastly different. Even if you are read your Miranda Rights, when the interview is not custodial in nature, there are limited protections.

What Do I Do If Agents Come to My House?

First, ask whether you are being held in custody. If you are in custody, then tell the agents, “I want to speak to a lawyer. I want a lawyer here before I say another word.” If you are not in custody, and the interview is voluntary, remember that requesting a lawyer does not stop the interview. Your right to a lawyer before agreeing to participate is not absolute. However, requesting counsel is still the best and safest way to maintain control over the situation.

What if I Am in Custody?

If you are in custody and you have clearly requested counsel, the agents must stop the interview. The U.S. Supreme Court has made it clear that upon a custodial request for counsel, any questioning must cease, regardless of whether the individual asked for a lawyer due to the Miranda warnings or not.

If I am Not in Custody, Will Recording an Interview Protect Me Against 18 U.S.C. § 1001?

Recording your interview with federal agents will not protect you from federal criminal prosecution under 18 U.S.C. § 1001. This federal statute makes it a crime to knowingly and willfully make any materially false statement to federal agents. A statement is considered “material” when it has a natural tendency to influence, or is capable of influencing, the agency’s decision or action. Even if federal agents know your answers are false, you can still be prosecuted under this statute.

Is the First Amendment at Play?

For an interview to be a public officer observation, this requirement is not met in any situation unless the interview takes place in public.

If you are not in a public location, the First Amendment privilege won’t protect you.

What Can a Lawyer Do for Me?

An experienced federal defense lawyer can reach out to federal agents and ask why they want to speak to you. Based on the answer, you and your lawyer will decide whether you want to participate in an interview. This can be an incredibly powerful tool for you. If agents know you have a legal team on your side, they will be much more likely to treat you with respect and conduct their investigation in a professional manner.

Will Federal Agents Make an Official Recording or Transcript of My Interview?

Does Federal Law Require a Recording or Transcript of All Interviews?

No. There is no federal law requiring federal agents to record every federal interview, even if those interviews are conducted by a federal law enforcement officer in the scope of his or her duty.

What Is an FBI Form FD-302?

The FBI Form FD-302, or the “FD-302 report,” is an FBI agent’s personal record of an interview. It is summarized in nature, and it does not provide a verbatim record of the interview. Interviewees do not participate in the drafting of the FD-302 reports, nor are interviewees required to sign their reports.

How Is a Personal Recording Different from the FBI’s FD-302 Report?

A personal recording of an interview that is based upon an FBI’s FD-302 report can reveal material differences between what was said and how the federal agent summarized it. As a result, a personal recording is far superior to the FD-302 summaries.

Is it Presumed that DOJ Agents Record All Interviews?

The Department of Justice’s (DOJ) policy regarding recording federal interviews is that recording is presumed to be recorded in certain post-arrest custodial interviews. These include (i) interviews following arrests under the material witness statute, (ii) custodial interrogation following the arrest of the individual, and, (iii) an interrogation following a formal charge of a crime.

These rules do not apply if a suspect consents to the use of a waiver.

It is generally the case that DOJ’s recording requirements only apply when a suspect is interviewed in custody. Recording non-custodial interviews fall under DOJ’s recording presumption.

If the DOJ’s Recording Presumption Applies, Can I Enforce This Requirement in Federal Court?

The DOJ’s recording policy also explains that it does not create any privately enforceable substantive or procedural rights. Again, DOJ’s recording requirements apply to custodial interviews, and these requirements can be enforced only by the DOJ.

Can Federal Agents Record Interviews Covertly?

Federal agents, though, can still record interviews covertly. 18 U.S.C. § 2511(2)(c) states, “ it shall not be unlawful under this chapter to intercept or disclose a wire, oral, or electronic communication if the disclosure is authorized by a court order or comes as a result of the law enforcement activity of a law enforcement officer acting under the color of law.” Under this federal statute, recording interviews without giving consent is legal in most cases. This applies even when the interview is an in-person discussion.

What Happens to My Phone and Recording After the Interview?

Can Federal Agents Search My Recording Device?

Generally, yes, if you give them consent to do so. However, as set forth in Riley v. California, “cell phones are different. Even in a search incident to arrest, the police must generally obtain a warrant before searching a cell phone’s data.” However, the law allows for a search without a warrant in some circumstances. If you have consented to have your interview recorded, or if you have given the agents permission to access the recording you made during the interview, the agents will be able to access the recording you made without a warrant. Your consent can only authorize the search to the extent that you give consent for recording your interview.

Can Federal Agents Take My Phone or Recording Device if I Do Not Consent to a Search?

Again, generally, federal agents need a warrant. However, if there are exigent circumstances, the agents may take the recording device temporarily to ensure it isn’t erased or destroyed. Once they have the device, the agents can then request a warrant.

How Important Is the Original Recording of an Interview?

When preparing your legal defenses, you need the original recording. This way, your lawyer will have access to the original recording, all the metadata of the recording, and the recording’s recording date. All of these are critical because they help establish the authenticity and completeness of the recording. If you have edited the recording, this may affect its admissibility in federal court and raise questions regarding the recording’s authenticity.

Can I Keep the Recording of the Interview to Myself?

It depends. In most cases, recording your federal interview will be subject to subpoenas and discovery requests by federal prosecutors. This is the standard procedure for federal criminal prosecutions.

Can I Publish My Recording on the Internet if I am Investigated?

Generally, it is better to publish your recording on the internet if you are under investigation by federal agents. This is because federal agents may put you in danger. Recording you is likely to trigger other investigations, including, (i) privacy, (ii) defamation, and, (iii) confidentiality, investigations.

Do I Need a Lawyer to Review My Recording?

Absolutely. A lawyer can help you with many things such as ensuring the recording is authentic, authenticating the interview, or using it in your federal criminal defense. Federal agents may be able to use the recording against you under Federal Rule of Evidence 801(d)(2)(A). If you’re being interviewed, you should have an experienced federal defense lawyer review your recording and provide your defense strategy with all the relevant information from the recording.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.