Emily Sortor  |  July 21, 2020

Category: Legal News

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Young businessman on phone in office

In addition to call recording laws set in place by the federal government, most states have their own laws regarding how and when people may record phone calls or conversations. The California Invasion of Privacy Act (CIPA) is one of the strictest privacy laws in the country.

About Call Recording Laws

Call recording laws fall into two categories. While most states, as well as the federal government, have one-party consent laws, 11 states have laws requiring two-party consent.

Under one-party consent laws, only one person involved in a conversation must consent to the call being recorded. This means that in a two-person conversation, one of the people may record the conversation without notifying the other person that they are being recorded.

Under two-party consent laws, both or all of the people involved in the conversation must be notified of the recording and give their consent. Both of these types of laws require the person doing the recording to be a part of the conversation. There are different requirements for recording conversations or phone calls that the recorder is not a part of, and is merely listening in on.

California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington require all parties involved in a conversation to consent to the conversation being recorded. In California, the California Invasion of Privacy Act (CIPA) governs the ways that companies and individuals may record phone calls.

What Is CIPA?

CIPA was created in order to protect California citizens from having their privacy invaded by companies or other entities. Under the act, individuals or organizations who violate the law and record someone without their notification and consent may be subject to fines or legal action.

Young woman talks on phone while working on lap topIn order to be in compliance with the law, companies that routinely record phone calls with customers must notify them at the beginning of the call that their conversation may be recorded.

Many companies record phone calls between customer service representatives and consumers for several reasons. These calls may be saved as a record of any disputes between the company and the consumer, or they may be used for training purposes or to improve future customer service.

Generally, when a company records phone calls, a prerecorded message informing the consumer that the call may be recorded will play at the beginning of the call. Consumers who stay on the line after hearing this message are assumed to have given their consent to be recorded.

The California Invasion of Privacy Act regulates not just call recording, but call monitoring as well. Many companies may use a combination of call monitoring and recording to improve customer service processes, train employees, or conduct consumer research.

CIPA regulations require businesses to ask for consent before they monitor a call, as well as recording it. Most consumers in the United States have had their calls recorded or monitored in a customer service interaction. Like call recording, consumers are usually alerted to the fact that a call is monitored at the top of the call. However, comes companies may fail to alert a customer, and may be in violation of CIPA.

Mindsight describes the ways in which call monitoring may play a role in customer service. Typically, three strategies are used, known broadly as “listen,” “whisper,” or “barge.” When a call is “listened” to, a manager may listen in on a customer service interaction between an employee and a customers. In this instance, the manager would not contribute to the conversation, but would instead merely listen to get a sense of the interaction.

In a more involved scenario, that manager might “whisper” to the employee, providing assistance when needed. In this instance, the manager would be audible only to the employee, and not to the consumer.

The most invasive version of call monitoring is “barge,” in which the person monitoring, likely a manager, might participate with both the customer and the employee. This might occur in a range of instances, like if a new employee needs help assisting a customer.

Although most phone calls made in California or to California residents are governed by CIPA, there are some exceptions to the law.

Exceptions to the California Invasion of Privacy Act

One exception to the act allows people to record a conversation without the knowledge or consent of the other parties involved if they have reason to believe they can collect evidence of a serious crime by doing so. For instance, a person who believes that they can get someone else to confess to murder would legally be allowed to record the conversation.

Another exception involves the “reasonable expectation of privacy.” If the conversation is taking place in a private home, there is a reasonable expectation that the conversation is private. However, if the conversation is taking place in a crowded street, or is happening in public at a loud volume, there is no expectation of privacy and it may be legal to record what is happening.

California Invasion of Privacy Act Case Studies

In one case from 2002, a woman who believed her boyfriend had recently murdered his pregnant wife was able to secretly record phone calls with him and use them as evidence to assist law enforcement. Amber Frey began dating Scott Peterson in November 2002, believing him to be single. However, Peterson was married, and his wife Laci was seven months pregnant. Soon after he began to date Frey, Peterson reported his wife as a missing person to police. Believing Peterson to be involved in his wife’s disappearance, police contacted Frey, informing her that her boyfriend was married, and requesting her assistance in the investigation by recording future phone calls between herself and Peterson. These recorded calls ultimately aided in Peterson’s arrest and murder charges in 2003.

More Restrictive Law Takes Precedence

If a person in California is having a conversation with a person in a state that only requires one person to provide consent to the recording, both parties must provide consent. The reason is that California’s law is more restrictive, which means a California resident’s rights could be violated if California law is not followed. The person from the one-party state would not experience a rights’ violation even if only the California resident provided consent.

Violations of California’s call recording laws may be punishable by a fine of up to $2,500 and a maximum of one year in jail. Any repeat offenses may carry a fine of up to $10,000 per violation and one year in prison.

A Californian who has been a victim of a violation of the California Right to Privacy Act may receive triple the amount of damages sustained or a maximum of $5,000 per violation if the victim files suit in civil court.

Are Calls at Work Exempt from California’s Privacy Laws?

No. An employer is considered a person under California law, which means the employer must follow the letter of the law on recording phone calls. Many California employers include a consent form that employees sign to provide the employer the right to record phone calls at work. You should have a copy of that agreement and such a policy should be outlined in an employee handbook.

However, your employer is prohibited from making any type of audio or video recording of an employee who is in a locker room, changing area or restroom without first receiving a court order to do so.

Determining CIPA Compliance

If you believe you may have been recorded without your knowledge or consent, you may have legal rights. In order to determine whether the call recording was in compliance with the California Invasion of Privacy Act, you may want to look into the call recording laws in your state and determine whether you live in a one-party or two-party state. Keeping a record of these calls, and noting whether or not a warning was given at the beginning of the call to alert you to the possibility of being recorded may also be helpful. Several companies, including Dermalogica, Swarovski, Drs. Foster & Smith, Mears Transportation Group, Romano’s Macaroni Grill, Southwest Rapid Rewards, United Airlines Pet Safe, Cannondale Bicycle Corporation, Czech Airlines have been accused by consumers of recording calls without consent.

If you believe you may have been recorded without your knowledge or consent, you may be eligible to hire a qualified attorney and file a lawsuit against the person or entity who recorded you. Victims may be able to recover financial compensation for these invasions of privacy.

If you live in California and you did not receive a warning when calling a toll-free number, your call may have been recorded in violation of California law, and you may be entitled to compensation. See if you qualify to file a California call recording class action lawsuit.

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