Can I Record the Conversations My Spouse Has with My Child?

The 6th Circuit Court of Appeals (which is not the Circuit Court of Appeals governing North Carolina) has found that a parent may consent for a child’s conversation to be recorded. The Court required that the parent consenting for the child present a good faith, objectively reasonable basis for believing such action was necessary for the welfare of the child. However, there is no similar rule in effect for the 4th Circuit Court of Appeals, which includes North Carolina. The taping of such a conversation would be a violation of the ECPA. It is clearly an illegal interception of a communication using a device, which would put it squarely within the prohibitions of the ECPA. Taping a child’s telephone conversation with the other parent would also violate North Carolina state criminal law (G.S. 15A-287). However, it is not illegal to use another phone in your home, in the ordinary course of business, to listen in on the conversation. This is referred to as the “extension line” exception to the ECPA. It is based on the principle that it is not illegal to monitor a conversation that one could otherwise hear legally. There is a conflict of opinion in the federal courts on whether you can record such a conversation. To do so is at your own risk of being found in violation of the ECPA.