Recording Law for Voiceprints & Biometric Data in Idaho

Idaho allows you to record a conversation if you are one of the people taking part in it. Idaho Code § 18-6702 says it is lawful to record a "wire, electronic or oral communication" when "one (1) of the parties to the communication has given prior consent." This applies whether the conversation happens in person, over the phone, or through another electronic channel. The law does not require you to tell the other person you are recording, and it does not matter where the conversation takes place. The only requirement is that you are a participant in the conversation. Idaho Code § 18-6702 was added in 1980 (ch. 326), amended in 2002 (ch. 223), and most recently amended in 2004 (ch. 303, sec. 1, p. 849).

Idaho defines an "oral communication" as any spoken exchange where the speaker shows an expectation that the conversation won't be intercepted, and the circumstances support that expectation. Idaho Code § 18-6701(2) states: "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation but such term does not include any electronic communication." This is a two-part test: the speaker must subjectively believe the conversation is private, and the setting must objectively justify that belief. If the conversation takes place in a loud public dispute or an open interaction with police, the circumstances may not justify a reasonable expectation of privacy, but the one-party consent rule still allows you to record if you are a participant. The expectation-based gate is textually confined to the "oral communication" category only; the "wire communication" definition (§ 18-6701(1)) and the "electronic communication" definition (§ 18-6701(10)) both carry no expectation-based qualifier.

Federal courts covering Idaho recognize a First Amendment right to record on-duty police officers performing their duties in public places. The Ninth Circuit, which includes Idaho, has ruled that recording police in these situations is protected speech. In Askins v. U.S. Dep't of Homeland Sec., 899 F.3d 1035 (9th Cir. 2018), the court stated: "the First Amendment protects the right to photograph and record matters of public interest," including law enforcement officers performing official duties in public places. This right exists even if Idaho's one-party consent rule is not the legal basis for the recording. Idaho Code § 18-6702(2)(c) and (2)(g) address law enforcement officers as interceptors, but these provisions do NOT restrict or specially permit a civilian recording an officer. Ordinary civilian recording of an on-duty officer in public is governed by the same one-party-consent rule and First Amendment case law for recording as a non-party bystander.

Idaho does not have a law that specifically regulates voiceprints or other biometric data. There is no state statute that requires consent to capture, store, or use a voiceprint, nor does Idaho impose retention or destruction rules for biometric voice data. A bill proposed in 2026, H.B. 744, would have created such requirements, but it did not pass. As a result, recording and storing a voiceprint from someone's voice in Idaho is not subject to biometric-specific consent, notice, or retention obligations under current state law. H.B. 744, if enacted, would have defined "biometric identifier" to expressly include "voiceprint" (§ 48-2101(1)(b)) and required informing the individual before capture and obtaining consent (§ 48-2101(2)(a)), reasonable-care storage/transmission protection (§ 48-2101(3)(b)), destruction within a reasonable time, no later than one year after the collection purpose expires (§ 48-2101(3)(c)), a consent-revocation mechanism with immediate destruction on revocation (§ 48-2101(3)(d)), and restrictions on sale/lease/disclosure to third parties absent specified exceptions (§ 48-2101(3)(a)). It also carved out voiceprint data held by financial institutions and most AI-model training/processing uses (§ 48-2101(7)).

Recording a conversation without consent when Idaho's wiretap law applies is a felony under Idaho Code § 18-6702. The law allows for criminal penalties of up to five years in prison and a fine of up to $5,000. Separately, Idaho Code § 18-6709 provides a civil remedy, allowing anyone whose conversation was unlawfully intercepted to sue for liquidated damages, punitive damages, and attorney's fees. These penalties apply to the illegal interception of wire, electronic, or oral communications.

Even though Idaho's one-party-consent wiretap statute makes it perfectly legal to record a phone call without telling the other party, an Idaho lawyer who does so with opposing counsel or a potential witness, without disclosure, risks discipline under Idaho Rules of Professional Conduct 8.4(d) for conduct prejudicial to the administration of justice. Idaho State Bar Formal Opinion No. 130 (May 10, 1989) treats undisclosed recording of opposing counsel or a potential witness as categorically prejudicial to the administration of justice, grounding the rule in IRPC 8.4(d) rather than dishonesty or deceit. The opinion expressly carves out an exception for client conversations, noting that attorney-client conversations are already confidential and recording clients without disclosure does not trigger the same 8.4(d) concern. Recording one's own client without disclosure is not treated the same way given the independent confidentiality protection already owed to clients. This is a distinct question from whether the recording is criminally/civilly lawful under Idaho's wiretap statute, which Opinion 130 itself acknowledges permits the recording.

Idaho’s wiretap statute criminalizes the interception of "wire," "electronic," or "oral" communications, all of which are anchored to an "aural" transfer or an "oral communication uttered by a person." Idaho Code § 18-6701(2) expressly excludes "electronic communication" from the "oral communication" definition, and "electronic communication" under § 18-6701(10) is defined as a "transfer of signs, signals, writing, images, sounds, data or intelligence... transmitted... by a wire, radio, electromagnetic, photoelectronic or photooptical system." Courts nationally have generally construed this language as reaching transmitted communications, not silent visual observation/recording captured locally by a camera lens (no transmission to another point/party). Under this reading, a wearable device capturing video only, with no audio, would fall outside the "interception" of a "communication" that § 18-6702 criminalizes. This conclusion is a reasoned statutory-text inference consistent with the general nationwide interpretation of ECPA-style statutes, not a confirmed holding.