Iowa’s One-Party Consent Rule
Iowa has a "one-party consent" rule, which means that only one party to a conversation needs to be aware that the conversation is being recorded in order for the recording to be considered legal. This one-party rule is a bit of a misnomer, however, as the law still requires a "consent" to be present before a recording can legally be made. Moreover, even though only one party to a conversation needs to be "informed," that does not necessarily give the party who is doing the recording an unfettered ability to record any type of conversation or communication. To that end, the Iowa Code provides that a person may not record a conversation when "such party knows or should know that a reasonable person of ordinary sensibilities would not call, transmit, record, or allow to be recorded…a telephone call, message, or conversation . "
The number of reasonable scenarios where such an invasion of privacy would be justified is likely minuscule, but nevertheless the law sets this stair-step of reasonable expectation of privacy as the main guidance for whether a recording is permissible under Iowa law.
Situations in which the use of recording equipment is likely to be permissible under Iowa law include: Situations in which one or more parties seeking to be recorded would likely have a reasonable expectation of privacy may include: Of course, whether a recording is lawful may ultimately end up being a question of fact for a trier of fact to determine.
Exceptions to Iowa’s One-Party Consent Rule
While the "one-party consent" rule generally applies in Iowa, there are some notable exceptions. According to I.C.A. §727.3(2)(d) it is a crime for a person to eavesdrop without the required consent and "to overhear, acquire, or record a conversation constituting a ‘confidential communication’" and that meets one of the following categories: Note that even if a conversation is confidential under the statute, it is not unlawful to tape record the conversation "if one party to the communication has given prior consent." In addition, consent to tape record need not be express consent but may be implied, so long as the reply given by the recipient "is reasonably understood to constitute consent, even though it is not expressed." Iowa Code §725D.1(2)(a)(i).
Penalties for Unlawfully Recording Conversations in Iowa
In Iowa, those found guilty of illegal recording can face civil and criminal penalties. In certain circumstances, the law allows for the recovery of damages for emotional distress and mental anguish. If the court finds that a violation was willful or wanton, the prevailing party may be awarded punitive damages. Damages typically range from $25 to $5000 per telephone call or telegraph sent, or $100 to $10,000 per wireless electronic communication.
In addition to damages, an injured party may be entitled to recover the costs of the lawsuit. This includes attorney fees. A defendant found guilty of willfully violating Iowa recording laws is liable for reasonable attorney fees. In practice, this generally means the non-offending party must pay their attorney fees if they lose at trial, and their opponent’s attorney fees if they win.
A civil action may be brought in an Iowa court where the plaintiff lives, the defendant lives, or where the violation occurred. Iowa recording and electronic wiretap law does not have a statute of limitations. However, it is generally agreed that among lawyers and judges, absent special circumstances, the statute of limitations is based on the cause of action asserted. Although the Iowa Supreme Court has yet to decide the issue, most courts find the two-year statute of limitations applicable to actions for invasion of privacy applies to unlawful taping and electronic eavesdropping cases. Other subsections subject to shorter statutes of limitations include violation of confidentiality of communications in the state, malicious breach of corporate privacy, and electronic eavesdropping for commercial purposes by providers of electronic communications service. When the statute of limitations is less clear, courts usually adopt the most closely analogous statute. For example, the statute of limitations for an action seeking punitive damages might sometimes apply.
Recording Conversations in the Office in Iowa
For the purposes of consent, Iowa law requires that all parties to a conversation agree to the recording. In the employment context, accurate record-keeping is vital. As an individual without your employer’s consent, you may not record conversations at work. Iowa is not a "one-party consent" state, which means that even with the permission of the person or people you’re communicating with, you still need the other parties to agree to the recording as well.
Generally , the "intercepting" or "recording" of any wire, electronic, or oral communication either in person or by any other device or means, without consent of the participants to the communication, is a serious misdemeanor. If you share the recording (for example, on social media) and it goes viral, the sharing will be a class D felony. If you record employers, coworkers, clients, or patients, you could be facing severe consequences including termination of employment.
Advice for Lawful Recording of Conversations
Before you decide to record a conversation, it is important to know what the law says about recording in Iowa. A conversation can be recorded for any lawful purpose as long as at least one party to the conversation consents to the recording. Iowa Code § 808B.2(3)(a).
The following tips can help both the recorder and the recorded make sure they are complying with the law.
Tips for the Recorder While you may have the right to record a conversation without telling the other party, you may want to consider asking permission to record. This will not only ensure that the other party has notice that they are being recorded, but it could also encourage them not to discuss certain topics. Again, this is particularly true when speaking to co-employees or subordinates because under the law, they may assume the conversation is happening in confidence. People sometimes feel that they have a right to speak their minds when others are not listening.
In addition, when recording co-employees or subordinates, consider whether the recording may hold information that is not available to the public, such as funds paid out during a coworkers’ retirement. The Iowa Supreme Court has held that even nonconfidential classified personnel records may be confidential because they are part of "the employer-employee relationship." Becker v. State, 818 N.W.2d 135, 156 (Iowa 2012). So even though you may hold some documents in your possession that are not public, if they are distributed to co-employees you may be taking on some liability if those records are not public.
In addition, because the law in Iowa does not require an employer to notify an employee that the employee is being recorded when the recording is done outside of work, recording a conversation about work may be a bad idea. This is especially true if the subject matter of the work conversation is private, such as health care information. In addition, recording employees may impact your progressive discipline policy. If you record an employee even though they were told that they should not talk about the company’s methods to perform a task at home, you may have an obligation to discipline that employee for violating your policy.
Tips for the Recorded But just because you are not legally required to give notice to the other party does not mean you should not do so. Giving notice that you are recording a conversation may help ensure you do not misreport what was said during the conversation later. It may also set a more professional tone for the entire conversation.
Also, you should note that if you do not disclose that you are recording the conversation, you may be in violation of state and federal wiretapping laws if the recording results in Erve we did not legal. Even if you are not criminally charged with the violation, it would seem that it would be very unlikely that a court would allow you to use the recording against the other party. Therefore, if you intend to use the recording in a lawsuit or in other legal proceedings, you should get the consent of the other party to the recording.
Federal vs. Iowa Laws on Conversation Recording
Both federal and Iowa laws govern whether you can legally record a conversation. While the two bodies of law are generally in sync as far as whether one party or all parties to the conversation must consent to the recording, they can differ when it comes to other issues.
The U.S. Code, Title 18, Part I, Chapter 119, is the federal law relating to the recording of conversations. Federal law only applies to communications affecting interstate or foreign commerce. Unlike Iowa law, federal law holds that it is illegal to "intentionally intercept . . . any wire, oral, or electronic communication". This means that you cannot record any phone call, even in Iowa, without consent from the other party , even if the call crosses state lines. The key here is interstate or foreign commerce. If someone calls into your business from out of state, your business can record the conversation between the caller and your employee.
Iowa law is more liberal in that it allows recording of conversations if one party consents to the recording. Under Iowa law, you cannot record an in-person conversation unless all parties consent. So make sure to obtain the consent of all individuals with whom you are speaking before recording. It is also worth noting that while Iowa law allows for the recording of a conversation with the consent of one party, under federal law consent from all parties is required.
