Minnesota’s “Wire Tap Law”:Who Can Record a Phone Call?

Minnesota’s wiretapping statute, Section 626A .02, is almost identical to the federal wiretapping statute, 18 U.S.C. Section 2511(1). In general, Minnesota’s statute states that it is legal for a person to record a wire, oral, or electronic communication if that person is a party to the communication, or if one of the parties has consented to the recording, as long as there is no criminal or tortious intent. In other words, you cannot intentionally intercept a communication, nor can you use a communication to commit fraud or blackmail even if you are a party to the conversation and it is not intercepted, unless you get consent. If you violate this statute you could be both criminally and civilly liable.

Offenses Under the Statute

Any person who:

(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, electronic, or oral communication;

(2) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

(ii) such device transmits communications by radio, or interferes with the transmission of such communication;

(3) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic, or oral communication in violation of this subdivision; or

(4) intentionally uses, or endeavors to use, the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic, or oral communication in violation of this subdivision; shall be punished….

How to Show that a Recording Was Used for a Criminal or Tortious Purpose

The burden of proof lies with the party attempting to show that the communication was intercepted for a criminal or tortious purpose. Put more simply, the person alleging the wrongdoing must have evidence of the intent of the wrongdoer. Thomas v. Pearl, 998 F.2d 447, 451 (7th Cir. 1993)

Penalties

There are both criminal and civil penalties under Minnesota’s wiretap law. A person can be subject to a suit by the county or city who has jurisdiction over the violation, as well as a civil fine. The criminal penalty is a maximum fine of not more than $20,000 or imprisonment for not more than five years, or both.

This article was written by attorney Maureen A. Carlson.