IS THERE ANYBODY LISTENING? More importantly…is anybody recording?
North Dakota is a one-party consent state, which means that a party to a telephonic or electronic conversation can record the conversation. This type of situation usually comes up in a criminal case if a person records a telephone conversation to catch another person in a lie, admission, or confession. However, these types of recordings can arise out of other legal matters as well, such as business or family/marital/custody disputes. What is the law regarding making these recordings in ND?
Outsiders Beware: Eavesdropping is a crime in ND
In the State of North Dakota, a person is guilty of a class C felony if he/she intentionally intercepts any wire or oral communication by use of any device; or intentionally discloses to any other person or intentionally uses the contents of any wire or oral communication, knowing that the information was obtained through the interception of a wire or oral communication. It is a class A misdemeanor if he/she secretly loiters about any building with intent to overhear discourse or conversation therein and to repeat or publish the same with intent to vex, annoy, or injure others.
Certain Defenses Apply
It is a defense to a prosecution for this offense in ND if he/she was authorized by law to intercept, disclose, or use, as the case may be, the wire or oral communication. It is also a defense if he/she was (1) a person acting under color of law to intercept a wire or oral communication, and (2) he was a party to the communication or one of the parties to the communication had given prior consent to such interception. Finally, it is a defense to this type of charge if he/she was a party to the communication or one of the parties to the communication had given prior consent to such interception, and such communication was not intercepted for the purpose of committing a crime or other unlawful harm.
What About Electronic Eavesdroppers?
With the rise of electronic assistant devices (from Apple, Google, Amazon, etc…) there is an increased chance of a recording of conversations between parties being created. While the one-party rule still applies to such recorded conversations, there is a risk of criminal exposure for individuals who obtain recorded conversations between others via electronic assistant devices if he/she attempts to use the recording for any purpose. The language used in the ND Eavesdropping law is problematic, making it a crime for any person who “intentionally discloses to any other person or intentionally uses the contents of any wire or oral communication, knowing that the information was obtained through the interception of a wire or oral communication.” A recorded communication captured by an electronic assistant may include information that a person wants to use in a dispute, but he/she is subject to criminal prosecution for using said contents for any purpose (unless one of the specific defenses applies). Simply put, the mere fact that the recording was made by a device, not a person, doesn’t allow the actor to “benefit” from the unauthorized use of the recording.