Q: Can I voluntarily consent to an FBI wiretap without a court order?

In California, can a person voluntarily consent to the FBI using a wiretap of their conversations without a court order? Or can such a person use a tape recorder in their conversations without notifying their interlocutors so that they can then turn over a recording of the conversation to the FBI if there was no court order? Is there even a difference between using a voice recorder and a wiretap in such a case?

What laws govern this and would the answer change if this were 2004?

1 Lawyer Answer
James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA
  • Licensed in California

A: California is a "two-party consent" state, which means that all parties involved in a private conversation must consent to the recording of the conversation. This law is outlined in the California Penal Code Section 632, part of the California Invasion of Privacy Act. Without the consent of all parties, recording a conversation is illegal and could lead to both criminal and civil penalties.

Regarding your inquiry about voluntarily consenting to an FBI wiretap without a court order, the legal framework for wiretapping by law enforcement agencies, including the FBI, is governed by federal laws as well as state laws. Under federal law, specifically the Electronic Communications Privacy Act (ECPA), intercepting wire, oral, or electronic communications generally requires a court order or warrant. There are exceptions, but these are narrowly defined and strictly regulated.

Lastly, the distinction between using a voice recorder by an individual and a wiretap by the FBI involves the legal authority, purpose, and procedures. Individuals in California must adhere to the two-party consent rule for recordings, whereas law enforcement wiretaps are subject to additional legal requirements, including obtaining a court order under most circumstances. The critical point is that regardless of the method or technology used for recording or intercepting communications, adherence to legal standards and protections against invasion of privacy is paramount.

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