Those attempting to record conversation without consent may be breaking both federal and state call recording laws.

A variety of wiretapping and call recording laws exist on the federal level to protect citizens from having their calls recorded without their knowledge. However, it can be difficult to understand when certain laws apply. For example, some laws may apply to a phone call while others apply to an in-person conversation.

Overall, federal law prohibits the recording of a telephone call or in-person conversation without the consent of at least one of the involved parties. This is called a “one party consent” law and allows the recording of calls by individuals who are a party in the conversation.

The Federal Communications Commission has accepted the following notifications as acceptable for informing consumers that their call is being recorded: verbal or written notification before the conversation; verbal notification before the recording starts (most common); and an audible, regular beep tone repeated during the call.

It is generally considered to be consent when consumers continue to participate in a call after being notified that they are being recorded.

It is important to note that special considerations may apply when it comes to law enforcement or other public officials. In some cases, recording these parties is allowed, but in other cases the laws can get hazy.

California Invasion of Privacy Laws

In addition to federal laws, states such as California have strict laws that increase protections against those who would record conversation without consent.

California’s call recording laws are “two party consent” laws, meaning that all parties must consent to recording before a phone call or conversation is recorded. Some businesses are suspected of violating this law regularly, such as Romano’s Macaroni Grill and various airlines.

One California law is the Wiretapping Law. This makes it illegal to record or eavesdrop on a confidential communication, i.e. a conversation in which one of the parties has “an objectively reasonable expectation that no one is listening in or overhearing the conversation”.

This law may or may not apply in public or a semi-public place. A recording is not necessarily legal if it is a conversation happening in a public place like a street or restaurant. Whether or not the California Wiretapping Law applies depends on the factual circumstances and whether or not a party’s expectation that no one is overhearing is reasonable or not.

Another California law, and the one most commonly used to persecute unlawful call recording, is the California Invasion of Privacy Act (CIPA). The act aims to protect consumers from invasions of privacy via technological means such as call recording. Under the law, all parties must consent to recording before a call is recorded.

According to the Digital Media Law Project, taking the following steps can ensure that you will not illegally record conversation without consent:

• Check state laws before recording calls to see whether or not it is legal.
• Get the consent of all parties before recording calls just to be safe from any legal action.
• Get consent on tape or in another form on documentation to stay in the clear.
• Don’t be secretive as it can cause more problems in the long run.