I am thinking of creating a business wherein I use specialized software on a client's phone that can be leveraged in the event that the phone in question gets stolen or the owner kidnapped.

The specialized software can, among other things, record audio from the phone's microphone.

In the event of the aforementioned crimes occurring is it legal to record the conversations of the parties committing the theft/kidnapping?

  • where are you locaed? in NY it's different from DC – Trish Mar 16 '19 at 7:45
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    Massachusetts where I'm at. – Steve Mucci Mar 16 '19 at 8:26
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    The applicable law will depend on where the client is, not where you are. AIUI different US states have different laws on secret recording, and if the recording crosses state lines then fedral law will apply too. And of course countries vary even more. – Paul Johnson Mar 17 '19 at 10:06

The recording-people-dilemma (in the US)

Your app is, in its core functionality, very much the same as a dictaphone or wiretap: it records people in its surroundings. Now, when is recording a person legal? That depends on where the person using the app is, and what law applies there. Let me grab two examples, one NewYork (I learned about its law from the Cohen hearing) and your choice, Massachusetts.

In New York, if a single party consents to record a conversation or phone call, all is legit. It might not be ethical or nice, but it is legal.

Massachusetts is a two party consent state, so unless both sides (recording and recorded) agree, it is illegal to record a conversation.

So, depending on where someone is, the use of a recording app can be a crime.

But is there a way out? Well...

First of all, it is not illegal to track where your own phone is. So far, one thing your app might do: tell where the phone is and save the geodata of your item. Geodata of phones has led to quite a number of lost or stolen phones being recovered.

Police officers are usually allowed to bypass the consent of the other party if they have a valid order, but they use the built-in functions of the phone and the service providers usually help to wiretap. On top of that, it can be quite illegal to install an application without the consent and knowledge of the user (State of Texas vs. Sony BGM).

So, the use of the software to secure voice evidence as a civil person is at worst illegal.

  • I do not think the one party/multi party distinction is relevant to OP's question b/c it is one party to the conversation and in OP's case the consentor would not be a party to the conversation. – emory Mar 18 '19 at 10:20
  • @emory there is a difference: the parties are "recorded people" and "recording person" - usually the recording person is part of recorded people – Trish Mar 18 '19 at 12:34
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    @Trish from your link about New York: 'New York's wiretapping law is a "one-party consent" law. New York makes it a crime to record to record or eavesdrop on an in-person or telephone conversation unless one party to the conversation consents.' – emory Mar 18 '19 at 12:58

I would suggest that you create software that records sound, with the permission of the rightful owner, without your software being aware that the phone has been stolen or not. As the owner, I might have some responsibility if I drop my phone at a friend's home and it records things that it shouldn't, but not if someone steals your phone.

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