Can I Record My Interview With Federal Agents?

The legal answer varies by jurisdiction. The practical answer is more complicated than the legal one.

The question of whether a private citizen may record a conversation with federal agents without the agents’ knowledge or consent is governed by a combination of federal and state wiretapping statutes, the circumstances of the specific encounter, and the practical consequences of attempting to record an interview whose existence the government is already documenting in its own way. The answer is not uniform, it is not without risk, and it is not a substitute for the protection that counsel’s presence provides.

Federal Law on Recording

The federal Wiretap Act, codified at 18 U.S.C. 2511, prohibits the intentional interception of wire, oral, or electronic communications. The statute contains an important exception for one-party consent: a participant in the communication who consents to the recording may record it without violating the federal statute. Since you are a participant in any interview you record, your own consent satisfies the federal one-party consent requirement.

Federal law, standing alone, permits you to record a conversation to which you are a party. Whether doing so is advisable in the specific context of an FBI interview is a separate question entirely.

State Law Complications

Eleven states require the consent of all parties to a recorded conversation: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington. If an interview occurs in one of those states and you record it without the agents’ knowledge, you may have violated state wiretapping law regardless of the federal one-party consent rule.

Federal agents who discover that you have recorded an interview without their knowledge in a two-party consent state may treat the recording as evidence of your willingness to engage in illegal conduct. That inference, however attenuated, is one that can affect the posture of the investigation and the government’s assessment of the subject. The recording that was intended to protect has become a complication.

The Practical Reality of FBI Interviews

FBI agents document interviews through FD-302 reports written after the fact. They do not, as a matter of standard practice, record voluntary interviews of subjects. The subject who records the interview creates a record that the agents’ 302 does not. That record can be valuable if the 302 mischaracterizes what was said, providing an independent basis for challenging the agent’s account.

It can also be subpoenaed. A recording made by the subject that captures statements inconsistent with a position taken at trial is a recording the government will seek to introduce. The evidentiary sword cuts in both directions, and the subject who creates a recording assumes responsibility for its entire contents.

I have reviewed two recordings made by subjects during FBI interviews. One contradicted the agent’s 302 in a material and favorable way. The other contradicted the subject’s trial testimony in a way that the government used to devastating effect. The recording is an instrument, and instruments serve the person who wields them skillfully.

The Alternative

The legitimate purpose served by recording an FBI interview, the creation of an independent record that protects against mischaracterization, is more reliably accomplished through counsel’s presence. An attorney who is physically present during a voluntary interview can take contemporaneous notes, can object when questions exceed any agreed scope, and can debrief the subject immediately after the interview concludes. The notes the attorney produces are protected by the work product doctrine. The recording the subject makes is not.

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If the interview is going to occur, it should occur in the presence of counsel. That presence provides the documentation, the real-time guidance, and the professional memory that a recording attempts to substitute for.

If You Have Already Made a Recording

A subject who has recorded an interview with federal agents should advise counsel of the recording’s existence immediately. Counsel can assess whether the recording was lawfully made, whether it is subject to a preservation obligation, and whether its contents create any independent exposure. The recording should not be shared, disclosed, or destroyed before that assessment is complete.

Destruction of a recording that the government might seek in connection with an investigation it is conducting carries its own exposure. Preserve the recording. Consult counsel. The assessment of what it contains and what to do with it is the work of that consultation, not of unilateral judgment made in the absence of legal guidance.