How to record interviews legally: consent and practice

Two rules cover most situations. First, the consent rule depends on the states involved, and where they differ the stricter one is the safe assumption. Some states require only one party to consent; others require everyone on the call. Second, whatever the rule, ask on the record and keep the answer. A recorded yes at the top of the file is the thing that settles the question later, and it costs a few seconds. This page is about the practice of doing that well — the state-by-state detail lives on our recording-laws page.

The practice

This is general information, not legal advice, and it is not a substitute for asking a lawyer about your own situation. For the state-by-state position and the statutory sources, see recording people lawfully.

Ask before, then again on the recording

"Before I start — may I record this?" … press record … "Just for the tape: you are happy for me to record this?" Ask once before, so nothing is captured that they have not agreed to, and once after, so the yes exists in their own voice with a timestamp. Journalists routinely skip the first half and start rolling before they ask; where every party has to consent, those opening seconds were themselves recorded without it. Asking twice removes the question and costs about ten seconds.

What to actually say

I am recording this so I quote you accurately rather than from my notes. Is that all right? — and if you want anything off the record, say so and I will stop. Offering the off-switch up front gets you more, not less: people talk more freely when they know they can stop.

Across state lines

A call between a one-party state and an all-party state raises a genuine conflict-of-laws question, and the practical answer used by people who do this professionally is to follow the stricter rule. Asking clearly satisfies both, which is why the practice above works regardless of where either of you is sitting.

Off the record, on background, not for attribution

These three mean different things and the person you are interviewing may not know that. Say which one applies in plain words and confirm it: So that part I will not use at all versus I can use it but not name you. This is the misunderstanding that ends working relationships, and saying which one you mean avoids all of it.

Special cases that change the answer

Minors, healthcare settings, legal proceedings, prisons, workplaces subject to a union agreement, and anything involving a regulated profession each carry additional duties beyond the general consent rule. If your interview is one of these, the general rule is not enough and this page is not the place to stop.

What to keep afterwards

The raw audio, unedited. The consent exchange. When and where it was recorded. Any later agreement about what is usable. Keep the original even after you have the transcript. A transcript is a claim about the audio, and when the claim is challenged the audio is what answers it.

Transcripts are drafts

Automatic transcription misplaces names, numbers and negations, and a wrong "not" reverses the meaning of a quote entirely. Check anything you intend to publish against the audio at the timestamp. This is not a reason to avoid the tools; it is the step that makes using them safe.

When not to record

When the person is clearly uncomfortable but feels unable to refuse, when the setting makes consent doubtful, and when the value of the recording is lower than the cost of the person not speaking freely. Notes are a legitimate alternative, and sometimes the better one.

Questions

Do you need permission to record an interview?

In some states only one party to the conversation needs to consent; in others everyone does. Because the rules differ and a call can cross state lines, asking clearly and getting a recorded yes is the practice that works under either.

How do you ask someone for permission to record?

Ask before you press record, then ask again once it is running so the yes is captured in their own voice. Starting the recorder first is a common habit, and it means the opening seconds were recorded before anyone agreed — which matters where every party has to consent.

What happens if the interview crosses state lines?

It raises a genuine conflict-of-laws question. The common professional practice is to follow the stricter rule — treat it as all-party consent — which asking clearly satisfies in any case.

What is the difference between off the record and on background?

Off the record generally means not usable at all; on background usually means usable without naming the source; not for attribution sits between them. They are conventions rather than law, so confirm in plain words what you have both agreed.

Should you keep the original audio?

Yes, unedited, alongside the transcript. A transcript is a claim about what was said; when that claim is challenged the original recording is the only thing that settles it.

Can you rely on an AI transcript of an interview?

As a draft, not as a quote. Automatic transcription misplaces names, numbers and negations, and a dropped "not" inverts a sentence. Check anything you publish against the audio at that timestamp.

Can you record a phone call with someone in another country?

That adds a second legal system and sometimes a data-protection regime as well, and the answer is genuinely fact-specific. Ask clearly and get a recorded yes, and take advice if anything about the interview is sensitive.

General information about a practice, not legal advice, and we are not your lawyers. Recording law varies by state and by profession and changes; verify against a primary source before relying on it. Scriben is recording people know about. You say what the pen is and what it does, they agree, and then it stays out of the way for the rest of the conversation — that second half is the product, and it only works after the first. Recording law varies by jurisdiction and by profession: see recording people lawfully before you start.