recording a phone call (US, hypothetical)

[Eli the Bearded]

I live in California, so if you want to get specific about states, that
would be most interesting to me.

I have no immediate plans to record phone calls, but I am curious about
the legal options to do so. I know, generally, that some states are one
party consent and some are all (both?) party consent for doing that.

Here's the scenario that most interests me. I call up a company, let's
say for the sake of discussion it is CableSleazeCo to conduct a matter
of business since they, for some reason, prefer to do this over the
phone rather than via easily copied postal mail. I do not know, when I
call CableSleazeCo, if my call will cross state lines or not.

While waiting to actually start speaking to a human at CableSleazeCo, I
hear a message informing me that "This call may be recorded for quality
of training purposes."

At this point, I believe two things:

0. My right to record a call depends on where I am calling from,
not where the other end of the call terminates.
1. If I do not wish to consent to the call being recorded, I need
to hang up now.
2. I now _also_ have permission to record the call, because the
called party is also subject to those recording rules.

Am I correct in my those beliefs? Does it matter if I'm calling a
Federal agency, say the IRS, instead of CableSleazeCo?

Elijah
------
just for a change of discussion from events in Washington

[Roy]

#0 is wrong. The general rule is that to record a call, you must
satisfy the laws of of both the source and destination locations. You
can't trust areacodes to give a location since people now tend to move
and take their number with them. If you calling to a two-party state
then everyone on the call must agree.

#1 is wrong. You may tell the person at the other end to not record.
Of course if its a recording then the only way is to hang up.

#2 is correct (I think). I would assume thet if one party says they are
recording the call then obviously you both do

[Eli the Bearded]

In misc.legal.moderated, Roy <monta...@outlook.com> wrote:
> On 1/13/2021 3:26 PM, Eli the Bearded wrote:
>> While waiting to actually start speaking to a human at CableSleazeCo, I
>> hear a message informing me that "This call may be recorded for quality
>> of training purposes."
>>
>> At this point, I believe two things:
>>
>> 0. My right to record a call depends on where I am calling from,
>> not where the other end of the call terminates.

Okay, I know now this is completely wrong.

>> 1. If I do not wish to consent to the call being recorded, I need
>> to hang up now.
>> 2. I now _also_ have permission to record the call, because the
>> called party is also subject to those recording rules.

...

> #1 is wrong. You may tell the person at the other end to not record.
> Of course if its a recording then the only way is to hang up.

This is at odds with advice given on the web (for whatever that's
worth). Example from a vendor of call recording products:

https://www.versadial.com/faqs/call-recording-laws-united-states/

What is needed to get "consent?"

The FCC defines the methods that can be used to obtain consent as:

* Verbal or written consent given before the recording is made.
* Verbal notification before the recording is made. (This is
the most common)
* An audible beep tone repeated at regular intervals during the
course of the call.

Versadial doubles down on that consent middle bullet point here:
https://www.versadial.com/blog/telephone-recording-laws-notification-consent/

And another unrelated site offers similar guidance:

https://www.insightsassociation.org/issues-policies/best-practice/call-monitoring-and-recording-notification-best-practices-survey

Insights Association appears to be a trade group for "marketing
research".

> #2 is correct (I think). I would assume thet if one party says they are
> recording the call then obviously you both do

That is at least some reassurance.

(And about my IRS version: whenever the Federal rules apply, which would
be in states that don't have their own rules, and presumably non-state
areas subject the Federal law, it is apparently one party consent.)

Elijah
------
only finding resources for call center operators

[Barry Gold]

On 1/13/2021 2:26 PM, Eli the Bearded wrote:
> I live in California, so if you want to get specific about states, that
> would be most interesting to me.
>
> I have no immediate plans to record phone calls, but I am curious about
> the legal options to do so. I know, generally, that some states are one
> party consent and some are all (both?) party consent for doing that.
>
> Here's the scenario that most interests me. I call up a company, let's
> say for the sake of discussion it is CableSleazeCo to conduct a matter
> of business since they, for some reason, prefer to do this over the
> phone rather than via easily copied postal mail. I do not know, when I
> call CableSleazeCo, if my call will cross state lines or not.
>
> While waiting to actually start speaking to a human at CableSleazeCo, I
> hear a message informing me that "This call may be recorded for quality
> of training purposes."
>
> At this point, I believe two things:
>
> 0. My right to record a call depends on where I am calling from,
> not where the other end of the call terminates.
> 1. If I do not wish to consent to the call being recorded, I need
> to hang up now.

> 2. I now_also_ have permission to record the call, because the

> called party is also subject to those recording rules.
>
> Am I correct in my those beliefs? Does it matter if I'm calling a
> Federal agency, say the IRS, instead of CableSleazeCo?

wrt 0: The right to record a call depends on where BOTH (or all) parties
are. If you are calling somebody in an all-party state, you must get
their consent before recording.

wrt 1: Correct

wrt 2: I'm not sure what the rules are on that.

And, btw, California is an "all party consent" state, so you would need
the other party's consent to record regardless of where they are located.

--
I do so have a memory. It's backed up on DVD... somewhere...

[Arlen Holder]

See also:
o Call Recording - Definative Legal Source?
<https://groups.google.com/g/uk.telecom.mobile/c/O-lSn7suQFU/>

o record from phone, by ZOT (see also m.l.m offshoot thread)
<https://groups.google.com/g/comp.mobile.android/c/EytlOnhwZew/>

o Automatic call recorder (acr) freeware (only the best)
<https://groups.google.com/forum/#!topic/comp.mobile.android/Tb8wf4fJu_A>
etc.
--
Known misc-legal-moderated archives...
o <https://tinyurl.com/misc-legal-moderated>
o <https://misc.legal.moderated.narkive.com/>
o <https://groups.google.com/g/misc.legal.moderated>
etc.

[Bernie Cosell]

Eli the Bearded <*@eli.users.panix.com> wrote:

} I live in California, so if you want to get specific about states, that
} would be most interesting to me.
}
} I have no immediate plans to record phone calls, but I am curious about
} the legal options to do so. I know, generally, that some states are one
} party consent and some are all (both?) party consent for doing that.

I wonder how this works for my cell phone. I'm running an app that
automatically records EVERY call [it for-sure records all incoming calls,
I'm not sure about outgoing calls]. When I terminate the call I have a
small window in which I can instruct the app to save the recording. Is
that basically breaking the law in a lot of places?

/Bernie\
--
Bernie Cosell Fantasy Farm Fibers
ber...@fantasyfarm.com Pearisburg, VA
--> Too many people, too few sheep <--

[Stuart O. Bronstein]

Bernie Cosell <ber...@fantasyfarm.com> wrote:

> I wonder how this works for my cell phone. I'm running an app
> that automatically records EVERY call [it for-sure records all
> incoming calls, I'm not sure about outgoing calls]. When I
> terminate the call I have a small window in which I can instruct
> the app to save the recording. Is that basically breaking the
> law in a lot of places?

Yes, that's essentially breaking the law in many places. The fix would
be to have the phone beep at the person on the other side, once every
15 seconds. That will (or at least in the law is considered to) inform
that person he is being recorded.

--
Stu
http://DownToEarthLawyer.com

[Mike Anderson]

On 1/15/2021 12:48 PM, Bernie Cosell wrote:
> Eli the Bearded <*@eli.users.panix.com> wrote:
>
> } I live in California, so if you want to get specific about states, that
> } would be most interesting to me.
> }
> } I have no immediate plans to record phone calls, but I am curious about
> } the legal options to do so. I know, generally, that some states are one
> } party consent and some are all (both?) party consent for doing that.
>
> I wonder how this works for my cell phone. I'm running an app that
> automatically records EVERY call [it for-sure records all incoming calls,
> I'm not sure about outgoing calls]. When I terminate the call I have a
> small window in which I can instruct the app to save the recording. Is
> that basically breaking the law in a lot of places?

There's "breaking the law" illegal and there's "someone finding out you
broke the law and hauls you in front of a judge" illegal. Technically,
if the other person is in a two-party state, you broke the law.
Practically, if you don't ever do anything with the recording (no matter
if you saved it or not), it's likely no-one will ever find out and
nothing will come of it. Or if you recorded one call that only needed
one party and another that needed both and you only used the first in
court, again the chances are slim that anyone would ever find out about
the second, illegal one.

But there *is* the small chance a cop seizes your phone for some other
reason and finds the recordings (or just knows they were made, even if
deleted manually or automatically, based off the logs for the program)
that you could be charged with illegally recording the call(s).

[R G B0N0M1]

On Wednesday, January 13, 2021 at 4:26:13 PM UTC-6, Eli the Bearded wrote:

> 2. I now _also_ ha ve permission to record the call, because the

> called party is also subject to those recording rules.
>

The law regarding restricting the recording of telephone conversations
is based on the concept that there is an 'expectation of privacy' in the
call. (this is the same reasoning that makes listening in on cell-phone
frequencies illegal) A notice by one party the call to others, that that
party 'may' record the call means that any speaker for that party has no
'expectation of privacy' -- they have (or should have!!) 'actual knowledge'
that the call may be recorded on their end. There is no provision in law
to 'selectively' allow recording of a call -- e.g. to permit some parties to
record it while refusing permission to others. So, if the called party has
been given notice (by their employer) that the call 'may' be recorded, the
calling party can act based on the fact the the called party has been so
notified.

Note: if there is an auto-attendant announcement about recording _before_
a person comes on the line, and that person has _not_ been told (somewhere,
somehow -- e.g., part of a 'job description') hat their company records calls,
then the company is in violation of the law, themselves -- they notified the
remote party, but not the local party.