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From what I understand (correct me if I'm wrong), some actions are illegal by themselves, while others are only illegal if they are accompanied by "intent".

e.g. (in the U.S.) Filling out tax forms incorrectly is only illegal if I intend to commit tax fraud. Presumably I can fill out hundreds of tax forms incorrectly, throw them in the trash, and not run afoul of the law. Or more realistically, if I fill out the forms incorrectly by mistake, I am still legally OK because my intent was to pay my taxes correctly (proving that in case of an audit is a separate matter).

How does this apply when recording phone calls in a two-party consent state?

If I want to record phone calls for my own personal records, only to aid my fragile memory or to have my assistant transcribe them, is that inherently illegal? Or does it only become illegal if/when I make the recording available to other people?

edit: in the previous hypothetical, assume that the other party knew that my assistant was on the call, as if they were transcribing it live

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  • How is that even an issue of intent? You recorded the phone call on purpose. Maybe you didn’t know that was illegal, but ignorance of the law is no excuse.
    – SegNerd
    Feb 6 at 5:29
  • @SegNerd My understanding of the reason for the law, is that people don't want to have their words recorded and used against them. If I record the call, I can refer back to it and claim "X said this", but unless I actually provide the recording, it's no different from me just hearing the call, not recording it, and claiming "X said this". Unless I actually provide proof (in the form of a recording) it's still just my claim.
    – rmcrear
    Feb 6 at 5:33
  • @SegNerd and just to clarify, the "use-case" here is not at all confrontational - I'm not trying to find a way to secretly record someone without their knowledge, I'm just curious how this very common-sense law applies when it comes to someone just purely keeping track of information, with no intention of mis-using or abusing it :)
    – rmcrear
    Feb 6 at 5:42
  • @SegNerd also, you say that "ignorance of the law is no excuse", but isn't that that a valid excuse for the example I made - filling out your tax forms? (sorry for the multiple @'s, I really do appreciate your time)
    – rmcrear
    Feb 6 at 5:51
  • @mcrear again, sorry for the @'s but do you have a source for your claim that "ignorance of the law is no excuse"? According to this law.se answer ignorance is an excuse, is that answer incorrect?
    – rmcrear
    Feb 6 at 6:07

1 Answer 1

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Assume the relevant law said it was prohibited to record a call without permission. It looks like you wish it was a different law - prohibition on sharing such a recording with a third party. But that’s not the law.

The only “intent” I see in this point of view is you are trying to discern the reason (or fundamental intent) for the law and decide you are ok if you don’t violate that even if you violate the actual law. No.

An analogy - The speed limit is 25 (to keep people safe) so if you drive 50 when you are sure no one is around you have stayed within the intent of the law even though you violated the actual law. No.

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  • Thanks for the answer! That makes sense, and is what I expected. If you could, I'd appreciate a follow-up on this question
    – rmcrear
    Feb 10 at 7:15

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