Wiretap laws and the perioperative physician – The current state of affairs

Wiretapping laws generally govern the legality of surreptitious or unconsented audio recording or other interception of face-to-face conversations, telephone calls, and other oral or wire communications. Many of these laws were originally passed in the late 1960s or 70s, and many have since been modified or amended. Wiretap laws vary from state to state within the United States, and many clinicians as well as patients are often unaware of the scope and implications of these laws. We provide three hypothetical case examples to illustrate scenarios in which wiretapping laws come into play. Through a review of current legislation, we compiled relevant wiretapping statutes for each state, as well as the potential civil remedies and criminal punishments that could be imposed for violations. We include the results of targeted research related to cases in which rights or claims under applicable wiretap statues have been asserted in the context of medical encounters and healthcare practice. We classified thirty-seven out of 50 states (74%) as one-party consent state laws, nine out of 50 states (18%) as all-party consent state laws, and the remaining four states (8%) as “Mixed”. Remedies and punishments for violations of state wiretapping laws generally can involve civil or criminal fines and/or potential incarceration. Cases in which healthcare practitioners have asserted rights under wiretap laws remain rare. Our findings demonstrate heterogeneity with regard to the wiretapping laws state-to-state. The majority of punishments for violations involve fines and/or potential incarceration. Given the wide variability in state legislature, we suggest that anesthesiologists know their state's wiretapping law. •Wiretapping laws may govern all audio recordings.•Clinical situations where wiretap laws are applicable can happen unexpectedly.•The majority of states require one party for recording consent.•The majority of potential punishments for violations involve fines and/or incarceration.•We suggest that anesthesiologists be well-versed with their state's wiretap laws.