Although “wiretapping” sounds like something out of a spy movie or mafia crime ring investigation, it generally just refers to the act of recording a conversation (typically a conversation held over a telephone, hence the “wire” reference). There are many valid reasons you may want to record a telephone conversation or online video communication. You may record meetings with new clients to refer back to later and make notes, or you may want to take a recorded statement from a witness for an insurance investigation, for example. New Jersey’s wiretapping act regulates when and how it is legally allowable to record all kinds of oral communications.
Single-Party Consent to Record
Unlike some other states, New Jersey generally only requires the consent of one party to a conversation to record it or disclose its contents. The law states that
An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act. A person also can lawfully record electronic communications that are readily accessible to the general public.
New Jersey’s laws regarding recording of conversations address recording of an in-person conversation and recording of an electronic conversation (via internet, video conferencing, cellular phone, traditional phone, or other means of communication) slightly differently. New Jersey allows the lawful recording, without consent, of any conversation held in public where the parties have no objectively reasonable expectation of privacy (such as on a street or in a park, or even in a private establishment that is open to the general public, like a café or restaurant). For telephonic or other electronic communications, however, the consent of at least one party to the conversation is required to record it. New Jersey specifically provides that the requirement applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” which includes text messages sent between wireless devices.
Unfortunately, laws surrounding recording of communications differ between states. In the modern era, interstate communication is extremely common. So, what if the parties to a conversation are in New Jersey (a state that only requires one party to consent for a legal recording) and California (which requires all parties to consent)? Depending on the nature of what you use the recording for and what court asserts jurisdiction, such a recording may or may not be deemed legal. The safest strategy is to assume that the stricter state law will apply and err on the side of caution when attempting to record an interstate conversation. This can include asking for (and recording) oral consent as part of the recording, preparing and keeping a written consent, or other specific local requirements.
Have you ever noticed that when you speak with customer service, a recorded message often informs you that your call may be monitored or recorded before a representative takes the line? This warning is an effort to comply with varying state wiretapping laws and consent requirements.
New Jersey's recording laws make it a crime to photograph or otherwise record the “intimate parts” of a person or one engaged in a sexual act in a place where the person has a reasonable expectation of privacy and to disclose any images obtained by these means (including via text message, a form of "communication" under the law as noted above). This prohibition was strengthened in 2016 by an additional prohibition specifically banning “upskirting”—surreptitiously taking photos or video of a person’s undergarments in public places (for example, by positioning a phone under another rider’s skirt in a crowded subway train). (In New York, “upskirting” is punishable by up to four years in prison and a potential sex offender registration.)
New Jersey law does not criminalize the use of recording devices for other purposes in public areas where there is no reasonable expectation of privacy, even including actions like randomly filming people on the street or recording conversations on public streets. When you’re in public, you have no legally protected right to privacy, and someone who records your voice or image is free to use that recording for any legal purpose (including artistic or commercial use). However, it’s illegal to record someone for the purpose of committing an illegal act, i.e., one that is a crime or a civil violation, or to record someone in a place where they have a reasonable expectation of privacy (such as a public bathroom).
Pursuing Legal Action for Illegal Recording
If you believe you are the victim of improper or illegal recording, or if you have concerns about remaining compliant with geographically appropriate communications regulations, contact the attorneys at the Mark Law Firm. Anyone whose wire, electronic, or oral communication has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of violation, or $1,000, and can recover punitive damages, attorney’s fees, and court costs as well.
The attorneys at the Mark Law Firm have years of experience in the state and municipal courts of New Jersey. We have six convenient locations, in Basking Ridge, Newark, Oradell, Jersey City, Paterson, and Union, and we are proud to represent the values and people of our community. Contact us today to make an appointment to talk to one of our attorneys about your New Jersey personal injury case, workers’ compensation claim, employment law matter, family law issues, or other civil litigation matters.
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 N.J. Stat. Ann. § 2A:156A-4 (West 2012).
 N.J. Stat. Ann. § 2A:156A-2.
 N.J. Stat. Ann. § 2C:14-9.