theft massachusetts recording kidnapping phone
Is it legal to record audio using a phone if the phone has been stolen?
<p>I am thinking of creating a business wherein I use specialized software on a client's phone that can be leveraged in the event that the phone in question gets stolen or the owner kidnapped.</p>

<p>The specialized software can, among other things, record audio from the phone's microphone.</p>

<p>In the event of the aforementioned crimes occurring is it legal to record the conversations of the parties committing the theft/kidnapping?</p>

<h2>The recording-people-dilemma (in the US)</h2>
<p>Your app is, in its core functionality, very much the same as a dictaphone or wiretap: it records people in its surroundings. Now, when is recording a person legal? That depends on where the person using the app is, and what law applies there. Let me grab two examples, one NewYork (I learned about its law from the Cohen hearing) and your choice, Massachusetts.</p>
<p>In <strong><a href="http://www.dmlp.org/legal-guide/new-york-recording-law" rel="nofollow noreferrer">New York</a></strong>, if a single party consents to record a conversation or phone call, all is legit. It might not be ethical or nice, but it is legal.</p>
<p><strong><a href="http://www.dmlp.org/legal-guide/massachusetts-recording-law" rel="nofollow noreferrer">Massachusetts</a></strong> is a <em>two party consent</em> state, so unless both sides (recording and recorded) agree, it is illegal to record a conversation.</p>
<p>So, depending on where someone is, the use of a recording app can be a crime.</p>
<h2>But is there a way out? Well...</h2>
<p>First of all, it is not illegal to track where your own phone is. So far, one thing your app might do: tell where the phone is and save the geodata of your item. Geodata of phones has led to quite a number of lost or stolen phones being recovered.</p>
<p><strong>Police officers</strong> are usually allowed to bypass the consent of the other party if they have a valid order, but they use the built-in functions of the phone and the service providers usually help to wiretap. On top of that, it can be quite illegal to install an application without the consent and knowledge of the user (<a href="http://www.groklaw.net/article.php?story=20051121183414358" rel="nofollow noreferrer">State of Texas vs. Sony BGM</a>).</p>
<p>So, the <strong>use</strong> of the software to secure voice evidence as a civil person is at worst illegal.</p>

<p>I would suggest that you create software that records sound, with the permission of the rightful owner, without your software being aware that the phone has been stolen or not. As the owner, I might have some responsibility if I drop my phone at a friend's home and it records things that it shouldn't, but not if someone steals your phone. </p>
