Recording calls across state lines: which state's law applies

When a call crosses state lines, no single rule decides which state's recording law applies. Federal law allows recording with one party's consent, but a state with an all-party consent rule may apply its own law to protect people on its side of the call, as California's Supreme Court did in Kearney v. Salomon Smith Barney (2006). The conservative practice is to follow the stricter state, which in practice means getting everyone's consent on every call.

This guide explains the three layers of law involved, what Kearney actually decided, how some state statutes reach calls that start elsewhere, a table of common recruiter scenarios, and a short cross-state recording policy you can adapt.

Three layers of law on every interstate call

1. Federal law. The federal wiretap statute lets a party to a call record it, or anyone record with one party's prior consent, unless the purpose is criminal or tortious (18 U.S.C. § 2511(2)(d)). It covers interstate calls. It is commonly treated as a floor: it does not stop a state from applying a stricter rule.
2. The law of the state you are in. Your state's statute governs what you do where you are, including making a recording there.
3. The law of the state the other person is in. A state can treat recording a conversation with someone inside its borders as falling under its law, even if the recorder is elsewhere.

When all three agree (for example, both of you are in one-party states), there is little to decide. When they conflict, the question of which law wins depends on where a lawsuit or prosecution is brought and how that court resolves conflicts of law. You cannot control that in advance, which is why the practical answer is to satisfy the strictest rule that could apply.

What Kearney v. Salomon Smith Barney decided

Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006), is the case most often cited on this question. The facts are close to a recruiting setup: a firm's employees in Georgia, a one-party consent state, recorded telephone calls with clients in California, an all-party state, without telling them.

• The firm's argument. The recordings were made in Georgia, where they were lawful, so Georgia law should apply.
• The holding. The California Supreme Court held that California law should apply in deciding whether the secret recording of calls with California clients was unlawful. It weighed which state's interests would be more impaired if its law were not applied and concluded California's interest in protecting the privacy of its residents would be more seriously harmed.
• The remedy. The court allowed the plaintiffs to seek an injunction requiring the firm to comply with California law going forward, but did not allow damages for recordings made before the decision, because the firm could reasonably have relied on Georgia law until then.

You can read the opinion (docket S124739, decided July 13, 2006) on FindLaw or CourtListener.

Two lessons for recruiters. First, a business in a one-party state that regularly calls people in California should expect California's rule to be applied to those calls. Second, the leniency on past damages in Kearney came from the law being unsettled at the time. After Kearney, that argument is much weaker, and California's civil remedy is the greater of $5,000 per violation or three times actual damages (Penal Code § 637.2).

How other states' laws reach across borders

California is not the only example, and courts do not all use the same test. Two contrasting approaches show why a single rule of thumb is risky.

Washington: the statute names out-of-state calls

Washington's privacy statute covers private communications transmitted by telephone or other device "between points within or without the state" and requires the consent of all participants (RCW 9.73.030). The text itself contemplates calls that cross the state line.

Florida: where the words are spoken

Florida's appeals courts have focused on where the communication is uttered. In Cohen Brothers, LLC v. ME Corp., 872 So. 2d 321 (Fla. 3d DCA 2004), relying on the Florida Supreme Court's decision in State v. Mozo (1995), the court said an interception occurs "where the words or the communication is uttered, not where it is recorded or heard," and affirmed dismissal of claims by non-residents who spoke from New York and Puerto Rico, even though the calls were recorded in Miami.

Read together: under the California approach, a candidate in California is protected by California law even if you record from Texas. Under the Florida approach, a candidate speaking from Florida is the one Florida's statute is concerned with, wherever the recorder sits. Neither case tells you what a court in a third state would do. Both point to the candidate's location as something that matters, and the recruiter's own state still governs what the recruiter does.

The consent rule and nuances for each all-party state are in the table on two-party consent states.

Common recruiter scenarios

Notice what every row has in common. In none of them does "get consent" create a problem, while in most of them relying on one-party consent creates one. That is the whole argument for a single rule.

Remote work, travel and phone numbers

Three facts about modern recruiting make location harder to know than it used to be:

• Area codes are not locations. People keep their mobile numbers when they move. A 512 number tells you where the phone was first issued, not where the candidate is sitting.
• Candidates take calls from anywhere. A lunch break at a client site in another state, a family visit, a car. The location that matters is where the person is during the call.
• Recruiters work from home. An agency headquartered in a one-party state may employ recruiters who live and work in all-party states. Their location during the call is the one that counts for what they do.

If your process depends on knowing the candidate's state, ask directly as part of the logistics questions: "Which state are you in today?" Record the answer. If you would rather not depend on it at all, use the all-party approach on every call, which is what most recruiting teams with candidates in many states end up doing.

A cross-state recording policy you can adapt

Copy this into your team handbook and adjust the brackets. Have it reviewed by counsel before you adopt it; the value of writing it down is that everyone follows the same rule.

Recording and transcription of candidate calls

1. Scope. Applies to every call or video interview with a candidate, client
   or reference that is recorded, transcribed or captured by any tool.

2. Consent on every call. We treat every call as if all parties must consent,
   regardless of where our recruiter or the other person is located.

3. Notice before the call. Calendar invites and confirmation emails state
   that we [record / transcribe] calls and that the candidate can decline.

4. Consent at the start. The recruiter gives the approved spoken notice before
   the first substantive question and waits for a clear yes. [If capture is
   already running, the notice and the answer are captured.]

5. No means no. If anyone declines or withdraws, capture stops immediately
   and notes are taken by hand. Declining has no effect on the candidate.

6. New participants. When someone joins, the recruiter repeats the notice.

7. Location. Recruiters record their own state and, where stated, the
   candidate's state in the consent log. [Calls with people outside the US
   also follow our data protection notice.]

8. Storage and retention. Recordings and transcripts are kept only in
   [approved location], accessible to [roles], and deleted after [period],
   subject to legal holds and record-keeping rules.

9. Tools. Only [approved tools] may be used. Personal call-recording apps
   are not permitted for candidate calls.

10. Questions. Unclear situations go to [name/role] before the call.

The spoken wording for step 4, including a strict version for exactly this situation, is in the interview recording consent script.

If you have been recording without consent

If you realize your team has been recording calls with people in all-party states without asking, change the practice from the next call: add notice to invites and the spoken line to every call. Then talk to a lawyer before doing anything with the existing recordings. Deleting records can create its own problems, for example if a claim or a legal hold already applies, so that decision should not be made in a hurry or alone.

For the broader question of whether recording an interview is allowed at all, and the AI hiring rules that sit on top of recording law, see is it legal to record a job interview.