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I am considering recording a conversation or try to secretly record one between me and a non-federal employee. I am currently a federal employee, not FBI or CIA but am investigating on my own a possible cover-up which I am a victim and witness of. I want to know if I can do it legally without the others' consent.

  • Please add which state you are in because different states have different laws regarding recording conversations. Indicate also if the conversation would be in person, or via telephone. – Jason Aller Mar 16 '16 at 23:30
  • In person and in California. I am asking since I am a federal employee. – user3550783 Mar 16 '16 at 23:35
  • Is this in any way connected with your job for the federal government? While the federal government is not bound by state laws if they keep it from achieving a legitimate federal objective, that doesn't mean a federal employee doing something unrelated to their job can disregard state laws. – cpast Mar 17 '16 at 1:36
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California requires the consent of both parties. The relevant law is California Penal Code Section 632. However, take note of section e:

This section does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.

You also might find it allowable under section c on the grounds that communication is not considered confidential, but I doubt it based on the description you've given:

The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

As to whether your situation would fall under that exempt category, it would depend on the specifics, and you probably should consult a lawyer. If you choose to record a conversation, you may have to defend yourself in court, and you may find that the recording is inadmissible in any actions against the alleged wrongdoer(s).

  • in a public gathering - what the hell does that mean? It's not in a public place or just in public and it's not at a public gathering. So it's public, it's a gathering, and you need to be in it. Good grief. – jqning Mar 17 '16 at 2:14
  • @jqning my guess would be that they're trying to emphasize that the speech in question is made at a public gathering, for the purpose of the gathering. In my interpretation, this clearly distinguishes it from, say, an offhand conversation I have with a friend while we happen to be attending a public gathering. So, at a school board meeting, anything related to school board business made as part of the official meeting would be considered exempt. But, as always, I'm not a lawyer or (probably more important) a judge. – childofsoong Mar 17 '16 at 6:49

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