Can I Record FBI Agents

Can I Record FBI Agents

FBI agents just knocked on your door. Or they called asking you to come in for an interview. Maybe you’re under investigation, maybe they’re asking about someone else – you don’t know yet. What you do know: you want to record this interaction. Your phone is in your pocket. Can you hit record? Will they arrest you for it?

Thanks for visiting Spodek Law Group – a second generation law firm managed by Todd Spodek, with over 40 years combined experience defending clients in federal investigations. We’ve represented individuals in high-profile federal cases covered by the New York Times, featured on Netflix, interviewed by FOX News. We know what federal agents actually do versus what they’re allowed to do, because we’ve defended clients in your exact situation – some who recorded FBI interviews, some who didn’t, some who got prosecuted for recording.

The Moment FBI Contacts You

The knock comes at 6 AM. Two agents, FBI credentials out, asking if you’ll talk to them. The investigative apparatus of the federal government has focused its attention on you, and you’re standing there with a smartphone that can record everything. Should you use it? Federal law under 18 U.S.C. § 2511 permits one-party consent to record conversations. If you’re a party to the conversation – if you’re the one talking to FBI agents – you can record it without their permission. You’re not “intercepting” a communication when you record your own words being spoken – you’re documenting an interaction you’re part of. But here’s where constitutional federalism creates a trap. Eleven states reject the federal one-party consent rule and instead require all-party consent: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. In those jurisdictions, recording FBI agents without telling them violates state wiretapping law – and state prosecutors can charge you with a felony. You can be federally legal and state-prosecuted. This creates three tactical paths. First: record openly. Tell the agents, “I’m recording this conversation.” They may become more careful, they may refuse to proceed. But you’re legally protected in all 50 states. Second: record secretly. Your phone stays in your pocket. You’re complying with federal law if you’re in one of the 39 one-party consent states, but risking felony prosecution if you’re in one of the 11 two-party states. Third: don’t record. You’re left with competing memories, no evidence of what was actually said, vulnerability to FBI 302 forms that summarize the interview from the agents’ perspective with no accountability. The agents themselves record you routinely. FBI policy since 2014 has been to record custodial interrogations. The asymmetry is intentional – the government creates evidence while discouraging you from doing the same.

Your State Might Say You CAN’T

The federal wiretapping statute – 18 U.S.C. § 2511 – establishes the baseline: you can record when you are a party to the communication. Congress understood that people who participate in conversations should be free to record those conversations for their own protection. When you speak words, you control whether those words are spoken. Creating a record doesn’t violate anyone else’s rights because they have no reasonable expectation that you won’t remember, won’t take notes, won’t document the interaction.

But eleven states have criminalized this conduct through state wiretapping statutes requiring all-party consent. California’s law makes it illegal to record confidential communications without consent of all parties, with violations punishable as felonies. Florida, Massachusetts, Illinois, Pennsylvania – each has constructed state criminal liability for conduct that federal law expressly permits. Which law applies to you? Both. If you’re in Pennsylvania and you record an FBI interview without telling the agents, you’re complying with federal law but violating Pennsylvania law. The Pennsylvania Attorney General’s office can prosecute you under state law for the same recording. If you’re in New York, Texas, or any of the other 39 one-party consent states, you can record FBI agents you’re speaking with and you’ve broken no law. If you’re in California or one of the 10 other two-party states, you face state felony charges if discovered.

Public Interactions

When FBI agents conduct activities in public spaces, your right to record crystallizes under the First Amendment. Glik v. Cunniffe – First Circuit held in 2011 that citizens have a clearly established right to record police performing duties in public. Simon Glik used his cell phone to film Boston police arresting someone. The officers arrested Glik for violating Massachusetts wiretapping law. The First Circuit held the arrest violated his constitutional rights. The logic extends beyond local police to federal agents. The Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have recognized variations of this right. The Fourth Circuit ruled in 2024 that livestreaming a police traffic stop is speech protected by the First Amendment. The First Circuit reaffirmed in 2021 that even secret audio recording of police is First Amendment protected. The ACLU notes this right extends to border contexts. In a 2025 settlement, the federal government conceded there’s no border exception to the First Amendment right to record federal agents. If ICE conducts an arrest in public, you can film it.

The limit is interference. You can’t physically obstruct federal agents. But standing ten feet away with a phone camera? That’s protected speech.

You recorded the FBI interview. Now what? Best case: the recording stays private, you’re in a one-party consent state, and you have documentation of exactly what was said. If agents later claim you made statements you didn’t make, you have evidence. Middle scenario: agents discover you’re recording. They’re angry. They may terminate the interview immediately. But if you’re in a one-party consent state, there’s no crime. Worst case: you’re in a two-party consent state, you recorded secretly, and the recording becomes known to state prosecutors who decide to charge you with felony wiretapping. This happens less frequently than the laws might suggest – prosecutors have discretion. But it happens. California has prosecuted people for recording police without consent.

At Spodek Law Group – managed by Todd Spodek with over 40 years combined experience – we’ve seen every variation. Clients who recorded and had charges dismissed because the recording proved FBI misrepresented their statements. Clients who didn’t record and faced trial based on 302 forms that didn’t match their memory of what was said. You’re in a better position with evidence than without it.

Your next move if you already recorded without consent in a two-party state: don’t tell anyone except your attorney. Don’t admit to agents that you recorded. If you’re facing federal agents and considering whether to record: the legal framework permits it in most circumstances. We’re available 24/7 at 212-300-5196.