Tennessee lawyers explain state’s secret recording laws

NASHVILLE, Tenn. (WKRN) — We wanted to learn more about the secret recording laws in Tennessee, including what’s legal. And, also what makes Tennessee recording laws different from other states.

Attorneys Benjamin McGowan and Miles Mason Sr. practice on opposite sides of the state, but both agree when it comes to secretly recording a conversation in Tennessee, the law is murky.

“All lawyers have been struggling with wiretapping law since it came into existence,” said Mason Sr., with Memphis-based firm Miles Mason Family Law Group.

“It’s hard to say that there’s a formula; it’s really fact-specific,” said Benjamin McGowan, with the firm Summers, Rufolo & Rodgers in Chattanooga.

Let’s start there. Some states have two-party consent. That means both people must know they are being recorded; however, in Tennessee, that’s not the law. It’s a one-party consent state. That means you can record your conversation with another person and they don’t need to know a thing about it – but the key is you must be part of the conversation. It’s a lower barrier to secret recordings.

“The one-party consent state is a more buyer-beware type of approach to these things. You need to be on notice, all citizens should be on notice that they are subject to being recorded by the individual with whom you are talking,” said McGowan.

A violation could land the person recording with a 2-4 year felony sentence, and thousands of dollars in punitive damages – one reason many lawyers often say don’t secretly record.

“Just don’t do it. Don’t be involved with it.  Don’t be near it. It’s a third rail, it’s an electric fence,” said Mason.”If you’re an employer or an elected official, you need to be very, very careful with who you record and when.”

Mason said there are some situations where a recording could help prove your case, but be sure to consult with a lawyer first. This is a part of Tennessee law that can be very fact-specific. 

“A judge’s, or prosecutor’s, personal sense of justice – what’s fair and what’s not fair; what is reasonable and what is not reasonable – comes into play.”

Tennessee is one of 37 states that have one-party consent when it comes to secret recordings.