US State-Level Wiretapping Laws
Wiretapping laws differ as to whether 1 or all parties must consent to the recording. In so-called all-party jurisdictions, covert recording (recording without the expressed permission of all parties) is illegal because all who are being recorded must consent. In contrast, in single-party jurisdictions, the consent of any 1 party to the conversation is sufficient, including the person making the recording; therefore, if patients wish to record a clinical encounter, they can do so without obtaining the clinician’s consent. Statutes in 39 of the 50 states and the District of Columbia conform to the single-party consent rule. The 11 all-party jurisdictions are California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington.
Connecticut requires all-party consent for recording telephone calls, but not for face-to-face conversations. Similarly, Nevada requires all-party consent for wire recordings (unless an emergency precludes obtaining consent from both parties). Vermont does not have a wiretapping statute; however, there is a possibility that nonconsensual recording could be deemed an invasion of privacy in this state. Michigan appears to require all-party consent however, an appellate court interpretation suggests that only a single party’s consent may be required when the person making the recording is a party to the conversation. Because there is some uncertainty with Michigan, we have erred toward a strict statutory interpretation. Oregon law allows for a single party alone to consent to recording of a telephone conversation , but requires consent of all participants for in-person conversations. In addition to criminal penalties, civil liability may occur under wiretapping laws or a claim for invasion of privacy. If sued, the patient could be required to pay for any attorney’s fees incurred by the physician and costs as well as damages .
The consequences of violating wiretapping laws can be severe. Typically, it is a felony to make an unauthorized recording and affected parties also may seek damages from the person who made the recording, including compensation for harm, attorney’s fees, and other costs. Disseminating the recording may be an additional violation, and recordings made in violation of the law may not be introduced as evidence in court.
Are Office Recordings Subject to HIPAA Compliance?
Whether the Health Insurance Portability and Accountability Act (HIPAA) standards apply to the audio or video recording of a clinic visit is based on ownership of the recording. The recording is subject to HIPAA standards if it is “created or received” by a “covered entity,” including health plans, health care practitioners, and health care clearinghouses. However, a patient-initiated recording that is retained by the patient (and not given to the clinician or health plan) is not subject to HIPAA.
How Can Clinicians React if a Patient Wishes to Record the Clinical Encounter?
If a clinician in a single-party jurisdiction is asked by a patient to allow a recording, the clinician may ask the patient not to proceed, but the patient has the right to record the clinical encounter. The clinician can choose to continue, accepting that the conversation is being recorded, or terminate the visit. Clinicians in single-party jurisdictions should be aware that patients may be recording covertly. In all-party jurisdictions, a clinician can refuse to grant patients permission to make recordings. In these jurisdictions, illegal recording may be reported to the authorities.
Patients are free to share the content of recordings in single-party consent states, but require agreement of those who were recorded in all-party consent states. Most patients use this right to share the recording with a family member or caregiver but not on social media. This freedom may not apply to recordings modified or used to the detriment or harassment of the clinician captured in the recording. Using the recording to harm or damage the reputation of the clinician recorded could lead to legal action by the person affected.
The Future of Recording in Clinic
Research suggests that patients benefit from recording their office visits, and further work is in progress. However, patients who choose to record may be concerned about upsetting their clinicians by requesting permission or may have concerns about retribution if a hidden recording is later discovered. Simultaneously, clinicians may be concerned about the possibility of hidden recorders. Both contexts hinder a relationship of trust and open communication. Clinicians, patient advocacy groups, and policy makers should work together to develop guidelines and regulatory guidance on patient recording. As health care continues to make significant strides toward transparency, the next step is to embrace the value of recording clinical encounters.
Digital recording of interactions is occurring widely, often covertly. Clinicians and health care systems are uncertain about the law relating to the recording of clinical encounters. Developing clear policies that facilitate the positive use of digital recordings would be a step forward.
Corresponding Author: Glyn Elwyn, MD, PhD, Dartmouth Institute for Health Policy and Clinical Practice, One Medical Center Drive, Williamson Translation Research Building, Lebanon, NH 03756 (firstname.lastname@example.org).