Two party consent states: the map nobody actually agrees on

There is no agreed list of two party consent states. The count is nine, eleven or twelve depending on which page you open, and the three lists I compared on 20 August 2026 disagree about six states. Nine turn up on all three: California, Delaware, Florida, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington. Past those nine it is argument all the way down.

On 13 August 2026 a judge in the Northern District of California refused to throw out most of the privacy claims in In re Otter.AI Privacy Litigation, stapling a second question next to the consent one. What does the transcription vendor do with the recording afterwards? Almost no guide to recording consent, including the chart Otter publishes itself, gets that far.

This is a plain-language summary for planning purposes, not legal advice. Recording law turns on facts this article cannot know. Talk to a lawyer licensed in your state before you rely on any of it.

I spent 20 August trying to assemble one clean all-party list and gave up. What I have instead is three published lists that contradict each other, a near-primary guide that miscites the case it leans on, and statutes a careful lawyer could read either way. The ranking pages for two party consent states average that disagreement away. This one publishes it, then sets the state map next to a dated record of what each notetaker keeps.

Which states are two party consent states?

The Reporters Committee for Freedom of the Press says about 11 states primarily have all-party consent requirements for recording: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington. The Michigan entry carries a caveat inside the same sentence, “at least for recordings made by a third party who is not involved in the conversation.” Missouri and Oregon go in a second bucket, all-party in person and one-party by phone; Connecticut and Nevada are that bucket reversed. Hawaii and Maine want everyone’s consent only in particularly private places.

Federal law is the floor, not the ceiling. 18 U.S.C. 2511(2)(d) makes it lawful for a party to the conversation, or anyone with one party’s prior consent, to record it, and states may demand more. Plenty do. The commercial guides flatten that patchwork into a round number, usually 11 or 12, and the round numbers do not cover the same states.

The six states where the lists come apart

Start with Michigan, the loudest of the six. RCFP’s summary of Mich. Comp. Laws 750.539c has the state requiring all parties to consent before a third party outside the conversation records it. A 1982 Court of Appeals decision, Sullivan v. Gray, held that a participant is not the person the statute was aimed at, and a federal court in AFT Michigan v. Project Veritas agreed in 2021. The Michigan Supreme Court has never resolved it. Recording Law reads that record and files Michigan under one-party; RCFP reads the same record and files it under all-party. Both are defensible, which is the problem.

Cross into Nevada and the rule changes with the medium. Recording a phone call needs everyone. Recording a private in-person conversation needs one participant, per RCFP’s summary of Nev. Rev. Stat. 200.620 and 200.650. RCFP prints the supporting case as “Sharpe v. Nevada, 350 P.3d 388 (Nev. 2015).” The court’s own caption is Sharpe v. State, decided 4 June 2015, and it was a warranted-wiretap appeal about whether a statute untouched since 1973 reaches cellular calls and texts. Not a consent case. RCFP reads it as pulling cell calls inside the phone rule, which is plausible, but the guide I trusted most here got the case name wrong and I only caught it because I went looking for the opinion.

The one that catches sales teams is Connecticut, where the criminal rule and the civil rule point in opposite directions. One party’s consent satisfies the criminal statutes. Conn. Gen. Stat. 52-570d, as RCFP describes it, then hands the other party a civil claim unless you got consent in writing, or verbally with the verbal consent itself recorded, or played a recorded warning at the start. Damages, litigation costs and attorney’s fees. Nobody goes to jail over a discovery call. Somebody can still get sued over one, which is the shape of risk a rep dialling out of state never sees coming. If your team runs live prompting on those calls, how live call assistance actually works is worth reading alongside this.

Illinois looks settled and is not. Both RCFP and Recording Law call it all-party; Otter’s chart splits it into private and public. The hinge is 720 ILCS 5/14-1, again in RCFP’s summary: the statute bites when at least one participant reasonably intended the conversation to be private. A call taken from an airport gate is a fact question, and Otter’s chart is arguably the most honest of the three about that.

Oregon and Alaska are where I ran out of ground. Recording Law counts Oregon in its twelve while Otter and RCFP both describe the in-person versus phone split. Alaska appears on one chart and neither of the others. Do not lean on that row in either direction.

A word about the penalty figures. The $5,000 and $10,000 numbers that circulate in this topic are real and both are Californian. Cal. Penal Code 632(a) sets a fine of up to $2,500 per violation for a first offense, or imprisonment of up to a year in county jail, or state prison, or both the fine and the imprisonment, and it raises the fine ceiling to $10,000 per violation for anyone convicted before. The $5,000 comes from somewhere else entirely: Section 637.2(a) lets a private plaintiff recover the greater of $5,000 per violation or three times actual damages, and subsection (c) says actual damages are not a prerequisite at all. Most guides quote a number and skip the citation, which is how these figures came to read like folklore. Section 632 also excludes from “confidential communication” anything said where the parties could reasonably expect to be overheard, a carve-out wider than the summaries admit.

Massachusetts bans secrecy, not recording

Massachusetts sits inside the undisputed nine on all three lists of two party consent states, so it is not one of the six above, and it still gets misread more than any of them. Mass. Gen. Laws ch. 272 s. 99 covers every conversation, in person or by phone, and what it prohibits is secret interception. Tell everyone on the call that the recorder is running and the statute is not the thing that catches you. That is why a visible disclosure banner does more work in Massachusetts than a signature on a form.

The second question the Otter ruling added

Reported by the National Law Review on 17 August, the court in In re Otter.AI Privacy Litigation, No. 25-cv-06911-EKL, let CIPA section 631, ECPA, BIPA, unjust enrichment and UCL claims proceed, while dismissing the CFAA, CDAFA, Washington Privacy Act and, for all but one plaintiff, the common-law privacy claims.

Read the section 631 theory carefully, because that is the new one. The plaintiffs allege Otter retained recordings and used them to train its machine-learning models, and at this stage the court takes that allegation as true. On those alleged facts Otter stops looking like a tool handing a transcript back to the room and starts looking like a third party listening in. Retention plus commercial reuse is what moved it, on the pleadings.

This was a motion to dismiss. The court decided the claims can be tested, and it made no finding that Otter broke CIPA. Anyone telling you otherwise stopped at the headline.

The practical consequence is why this post exists. Participant consent and vendor data handling are two separate variables now. You can run a flawless disclosure script, collect a yes from every attendee in California, and still be sitting next to a vendor whose own policy says it trains on your customers’ words. That second variable takes ten minutes to check from the vendor’s policy page. Hardly anybody checks it.

What the notetakers say they keep

Every cell below came from the vendor’s own policy or documentation, read on 20 August 2026, with the policy’s own date shown. Policies change. Re-read them before you sign anything.

I run Craqly, so treat that last row with the skepticism it deserves and go read the page yourself. It is in the table because the section 631 test asks about retention and commercial reuse, and a tool that never writes the audio down has less to answer for on that particular question. On consent it owes exactly what everything else here owes. A desktop assistant that never joins the call as a participant still leaves you responsible for every disclosure your state demands, and stealth mode, which ships on every Craqly plan including the free Starter tier at 20 credits a month, is a screen-share and workflow feature, not a way around telling someone you are recording. For the same tools compared on features, see our roundup of AI note-taking apps for meetings.

The disclosure you already own

Both major platforms ship consent tooling most teams never switch on. Zoom’s disclaimer setting plus its consent report is the cheapest per-attendee evidence you will ever collect. Google Meet’s default is a warning, which is disclosure and not consent; the admin toggle that forces a click is the one you want in California and Massachusetts, and somebody has to go and turn it on.

For interstate calls, the working assumption across the guides to two party consent states is to follow the stricter state. I did not verify that against a choice-of-law case and I would not call it settled law. As an operating default for a team dialling into thirty states it is still the sane one, and it costs one sentence at the top of the call.

What I would actually write down

Turn on the platform disclosure setting and the consent report today. It is free, it takes four minutes, and on Zoom it produces the only per-attendee record most teams will ever have. Then open your notetaker’s privacy policy, find the paragraph about model training, and screenshot it with the date visible. That paragraph moves without a changelog.

Write one disclosure sentence your reps say out loud on every call, in every state, so nobody has to remember where the number they dialled lands.

And when you talk to your lawyer, ask about Connecticut, Michigan and Nevada by name rather than about two party consent states in general. The general question has no clean answer. Those three are where the exposure actually sits.

My guess, and I would not bet the company on it, is that the vendor column ends up mattering more than the state column over the next two years. A retention term can change with a product release, and if other courts pick up the section 631 theory, every unread privacy policy turns into a liability nobody priced. Renewal is the one moment you can ask and get an answer in writing, so ask it then. The no-bot alternatives to Otter comparison is what I keep open during those conversations.