Two-party consent states, and what the lists get wrong

Search “two party consent states” and you get a dozen articles with a tidy list and a colour coded map. The lists do not agree with each other, and the disagreement is not sloppiness. It is the actual state of the law.

This matters more than it used to, because an AI notetaker records every meeting by default, and it does not know which state anyone is sitting in.

This is not legal advice. It is a map of where the complexity is, so you know what to ask a lawyer about. For primary sources, the Reporters Committee for Freedom of the Press maintains a state by state recording guide, and Justia publishes a 50 state survey.

The short version

Federal law and most states follow one-party consent: if you are part of the conversation, you can record it. A minority of states require all parties to consent.

The states most consistently listed as all-party consent:

California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, Washington.

Connecticut is frequently counted as a twelfth. Some lists add Oregon, Michigan or Vermont. That is where it stops being simple.

Why the counts disagree

Some states split by conversation type. Connecticut and Nevada apply all-party rules to telephone calls. Oregon runs the other way and applies its all-party rule to in-person conversations. So whether a state “is” all-party depends on whether you are on a Zoom call or sitting in a conference room, and a list with one column cannot express that.

Michigan reads stricter than it works. Michigan’s statute is worded as all-party, but courts have recognised a participant exception since 1982, most recently reaffirmed by a federal court in April 2026. In practice Michigan behaves as one-party for someone who is part of the conversation. A list that includes Michigan and a list that excludes it can both be defended.

Illinois rewrote its statute. Illinois’ eavesdropping law was struck down and replaced in 2014 after the original was held unconstitutional. Articles written before that, and articles that copied from articles written before that, describe a law that no longer exists.

So the honest answer to “how many two-party consent states are there” is: it depends on how you count, and anyone giving you a confident single number without caveats has flattened something that matters.

The rule that actually protects you

For interstate calls, the prevailing practice is to apply the most restrictive law among all the states anyone is sitting in. One participant in California is enough to make California’s standard the safe assumption for the whole call.

For a remote team, that means the strictest rule in your participant list is your rule. And you often do not know where everyone is. Someone dialling in from a hotel room has moved states without telling you.

This is why “just get consent” is better advice than any map. It is also free.

Where AI notetakers change the analysis

Three things are different when software is doing the recording.

The recording is automatic and continuous. A person deciding to record makes a decision each time. A notetaker configured once records everything after that, including the five minutes before the client joins and the conversation after the agenda ends.

A bot in the participant list is notice, and also evidence. A visible bot arguably gives attendees notice, which helps. It also creates a durable record that a recording was made, which cuts both ways.

The vendor may be a party too. This is the novel piece. In the pending federal class action against Otter.ai, the court allowed wiretap claims to proceed on the theory that the vendor was not merely the host’s tool. Judge Eumi K. Lee held that plaintiffs “plausibly allege that Otter independently collects, retains, and uses communications for its own commercial purposes.” Those are allegations that survived a motion to dismiss, not findings of liability, and the case is unresolved. We wrote about it in more detail in is Otter.ai safe.

The point is not that Otter did something wrong. The point is that a cloud notetaker introduces a third entity to a conversation that the consent analysis has to account for, and until recently nobody was analysing it that way.

A practical checklist

1. Say it out loud at the start. “I have notes running, any objection?” Verbal consent on the recording is worth more than a policy in a footer.
2. Put it in the invite. Written notice before the call beats notice during it.
3. Assume the strictest state in the room. Cheaper than establishing where everyone is.
4. Know whether the vendor keeps a copy. Consent to being recorded by you is not obviously consent to a vendor retaining and processing the audio.
5. Turn it off for the sensitive part. The most reliable control there is.
6. Check the employment angle separately. Lawful under state law and permitted by your employer are different questions.

The architectural shortcut

Points 4 and 5 get easier if the recording never leaves your machine.

Private Notetaker captures audio locally, transcribes it locally, and writes the summary with a model running on your own computer. There is no bot in the participant list and no server side copy, so there is no vendor holding your meetings and no third party to analyse.

That does not exempt you from consent law. If you are in an all-party state, you still need everyone’s agreement, and a local tool that records without consent is just as unlawful as a cloud one. What it removes is the second question, the one about what the vendor does with the audio afterwards, because the answer is that the vendor never receives it.

It also means no team sharing, no cross-organisation search, English only, and a single desktop app rather than a workspace. If you need those, a cloud tool is the right call and your consent practice has to carry the weight instead.

If the local approach fits, see how it compares to the other on-device options, including ones that are not ours.

Checked 5 September 2026. Recording law changes and varies by circumstance. Verify against primary sources or counsel before relying on any of this.