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Can I record a call from Virginia to Maryland?

I live in Virginia (one party communication state). My phone has a Virginia number, and it can record calls (made while being physically located in Virginia). Federal law regarding communication follows the one party communication law. Maryland has a two party communication law. I've read that the law will default to the state where the recording device is physically located. Does this mean that it is okay for me to record my calls to Maryland since it conforms with Virginia, Federal, and default laws?

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  • @nij The answer to that question is wrong. I erased my answer, which was wrong, and the other one is wrong as well. I will try to get correct answers up. – Just a guy Dec 16 '19 at 22:49
  • @davidrobie To say for sure, we'd need to know more, such as: Is the person in Maryland a Maryland resident? Is this about a business headquartered in Maryland or Virginia? – Just a guy Dec 16 '19 at 23:13
  • What has hat to do with whether this is a duplicate? If you believe the existing answers to be wrong, post a correct one. – Nij Dec 17 '19 at 0:18
  • @Just a guy This is to an insurance company in Maryland. Also, the case will be tried in a one party state if it goes to court. That's where the collision occurred. – David Robie Dec 17 '19 at 0:52
  • @DavidRobie As the Florida example I give in my answer shows, it's not enough to know whether you are in a one or two party state. Because the details of who can or can't be recorded differs across states, you need to look at each state's laws to find out what the law says about your particular situation. – Just a guy Dec 17 '19 at 6:29
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The answer is, "No, it will not default to the state where the recording device is located." Whether your recording is legal or not may depend on where the device is located, but it may depend on other things as well. For example, to sue under Florida law, "the persons bringing suit must be Florida residents or the improper "interception" must have occurred in Florida." Thus, if the someone from NY is recorded while in Florida by someone in NJ, Florida law does not apply.

The rules used to determine which state's laws apply under which circumstances are explained thoroughly here.

The issue of which state's laws apply is what is known as "conflict of laws." The basic idea is simple: Because you and the insurance company are citizens of different states, you have "diversity of citizenship." If the laws in your states differ, the court must decide whose law applies -- is it the state you called from, the state you called to, or federal law?

Unfortunately for you, choice of law is hard even for lawyers to get a handle on. There are several different approaches states use to answer questions about conflict of law. Which approach a state uses to settle conflicts of law will determine whose law that state's courts will apply.

To get a correct answer, you need to talk to an attorney who understands conflict of law and the admissibility of wiretaps.

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  • Okay, but the situation is that I initiated a call from a one party state, on a phone registered in that state, and recorded on that phone while in the state. So it ought to be acceptable despite the fact that the other party was in a two party state, right? – David Robie Dec 17 '19 at 0:49
  • It looks like there are 3 outcomes. This is legal federally, illegal if it was in a Maryland court, but still legal in Virginia. As this would go to a Virginia court if tried, I believe that means the evidence would be admissible. Does that sound correct? – David Robie Dec 17 '19 at 1:01
  • @DavidRobie Off the top of my head, I have no idea whether that is right. If you want a correct answer, you need to talk to an attorney, or learn enough about conflict of law & wiretapping to figure out the example for yourself. – Just a guy Dec 17 '19 at 6:37

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