Do wiretap rules apply if no recording is made?

Scenario: I expect to have a difficult conversation with someone. I don’t want them to have any “I didn’t say that” deniability later. I am not in a “one party consent” jurisdiction for recording, and I consider it unlikely that a court would be willing to grant me legal coverage in advance.

So, instead, I surreptitiously establish a conference call and invite a large number of participants. Before the meeting, I dial into this call using the speakerphone on my desk, and globally mute all the callers. I hold the meeting without telling the other party that a thousand people are my secret eavesdropping witnesses.

Wiretapping or no?

Not much help, but I think that would fall under call monitoring. I’m pretty sure that notice must be given, but that might depend on circumstances like what state you’re in, what business relationship you have with the target, and who the listeners are.

I think most U.S. states that are not one-party consent states are “all party consent” states, so your “target” would still have to be informed. Most (maybe all) all party consent states have the doctrine of “implied consent”, meaning if you are informed the conversation is being recorded, and do not actively object, your consent is implied. This is why most customer service phone systems tell you in boilerplate “this call may be recorded.”

Without knowing the particulars I don’t know how I would approach this scenario. If this was a work situation that was going to be a work call, I’d probably setup a meeting with a few people and put a note in the meeting invite “this meeting may be recorded.” If it was more of an interpersonal 1:1 situation, I might put a small voice recorder down nonchalantly on the table and just say something like “I’m just using this to record for my notes, I’ve been forgetful lately.”

Obviously not as clean as recording surreptitiously, but legal.

Take a vacation to one of the 35 states that have one-party consent for recording conversations, and make the phone call while you are in that state.

Be sure to mention that you are in [a one-party consent state] early in the recorded conversation, for example: “I’m here in Virginia visiting George Washington’s estate, and I realized we need to have an honest conversation about …”

Depending on exactly how the law works in the other person’s state, that won’t actually work.

I think the answer to the specific question asked in the OP is clear: No, wiretapping laws are not relevant if you are not recording something, because wiretapping laws are about recordings.

But there may be other laws that would apply to the “call with a lot more people listening in” situation. I’m not exactly sure what they would be, but there can be legal causes of action for things that are revealed when there was a reasonable expectation of privacy. Like, imagine that you and another person were in a room with a two-way mirror that the other person didn’t know about. They might behave in ways they would behave in private and have a valid legal complaint if there were people watching behind that mirror, regardless of whether any of them had a recording device.

Ask a lawyer in your area. This might come down to reasonable expectations of privacy, invasive methods used, and many other things. In Canada, contrary to what some believe, these can and often do apply even in public spaces like restaurants and workplaces, and cover more situations than you might suppose. Our privacy legislation is better than advertised but needs updating, is better in some provinces than others, likely needs further safeguards. European legislation seems better in some countries. I know less about American rules. This situation may involve privacy but not witetapping.

How can these types of laws actually be enforced, without the person who secretly added the silent eavesdroppers confessing to doing so? With an actual recording you have physical evidence which needed to be intentionally started/stopped/preserved and then played & used to influence people later on. With no recording made, you just have people potentially overhearing stuff (once in real time, if they pay attention), which happens constantly every day.

Has there ever been a prosecution of a person just for putting someone on speakerphone without telling them?

Alternatively take written notes during the conversation. Let them know as you take them, so they know you are writing down points. Heck, read them back to get them to agree that is what they said and meant about the critical points. As soon as you are done, sign and date then, scan and email the notes to the other party.
In general your notes would carry some weight in a legal argument, and if it is more personal, an exchange like this would make it hard for any backtracking.

ISTM you taking notes is still just your word vs the other person in a trial. So what if you told the other person you were taking notes? They don’t know if you were scrupulously honest in your note taking. Nor can the court know your notes are a true account of the conversation.

I cannot see how that carries any weight.

Without a recording or witnesses it is a he said/she said thing.

Back before recordings there was a whole legal structure around this, and notes do carry weight. The precedent hasn’t changed in the world of recording technology. Indeed, with the legal barriers to recording, notes still carry weight. It is a record that this is your immediate understanding of the conversation, not your recollection with imperfect memory. That matters. Sure, all manner of accusations can fly, but you are presenting evidence that what you are saying isn’t just your possibly faulty memory.
Notes maintained in a proper manner can and have decided patent cases.
Maintaining notes in a drawn out dispute in car faults has been a way of gaining the upper hand over dealers. Maintain a notebook, in order, dated, and numbered pages. Courts take such things seriously.

I can see some value of your testimony three years later matching your notes.

And I can see a jury liking that.

But let’s face it…it is trivial to fake or fudge those notes.

That a court gives them credence amazes me.