With technology advancing every day, it’s no surprise that some states have taken privacy protection into their own hands. In California, privacy is considered an inalienable right. To protect this right, state lawmakers enacted the California Invasion of Privacy Act (CIPA). Under CIPA, no confidential communication can be recorded without consent, and phone conversations are considered confidential communications. 

From training to quality assurance, there are many reasons businesses record calls. While we’re all probably familiar with the phrase “this call may be recorded,” not everyone is aware that businesses that don’t include notification of recording may be breaking the law. 

CIPA & Out of State Party Recordings 

When it comes to out-of-state businesses, CIPA actually has a long reach. Any out-of-state businesses that do business in the state must observe this law. Any calls made to residents or visitors of California must also follow the guidelines laid out in CIPA.

Of the companies facing lawsuits for CIPA violations, many aren’t based in California. If you aren’t sure whether or not a call you’ve received falls under CIPA regulation, you can consult with a CIPA compliance lawyer.

What is CIPA? 

CIPA is a law passed by the California Legislature in an attempt to protect consumer privacy. According to the California Legislative Information website, lawmakers in California decided that the advancement of technology meant for eavesdropping presented a “serious threat” of invasion of privacy. CIPA lays out exceptions for law enforcement and victims of domestic abuse but makes recording individuals without their knowledge a crime.

California is a “two-party consent” state. This means that, under the law, any conversations that are considered private based on reasonable judgments may not be recorded without the permission of all parties involved, even if there are more than two. In the case of recorded calls from businesses, this means that both the employee calling and the recipient must be aware and consent to the recording. Violations of CIPA can result in fines and even jail time in some cases.

How Does CIPA Protect You? 

The California Invasion of Privacy Act protects consumers in several important ways. First, it makes it illegal for businesses and private persons to eavesdrop on confidential communications. CIPA defines “confidential communications” as any communication made in a situation that would “reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” This doesn’t include conversations held in public.

Secondly, CIPA makes recording or listening in on phone calls without permission from all parties involved illegal. Colloquially, this is sometimes known as phone-tapping. 

Thirdly, CIPA protects consumers from being recorded on calls without their consent. If you are called by a company based in California, or if you are in California when you receive a call, the caller must inform you if you are being recorded. There are specific guidelines regulating what sort of notification is sufficient. For instance, consumers must be notified toward the beginning of a call if they are being recorded, not after communication has already happened.

The majority of customers in the United States report having called a customer service line at some point. Businesses may monitor or record calls for a number of reasons. Commonly, businesses may monitor calls to try to improve customer service by listening to what customers care about, improve their customer service processes, or train employees.

CIPA regulates not only call recording but call monitoring. Businesses must ask for consent not only before recording a call, but before monitoring a call. Some businesses may use a combination of call recording and call monitoring in routine customer service interactions.

Call recording and monitoring are quite common and can occur in a range of customer service interactions. These interactions often occur across state lines and are the ways in which most people experience call recording.

The majority of customers in the United States report having called a customer service line at some point. Businesses may monitor or record calls for a number of reasons. 

Mindsight explains that call monitoring can be done in a range of ways, though most often with methods known as “listen,” “whisper” or “barge.” In a “listening” situation, a manager may listen in on a customer service call without contributing. In a “whispering” situation, that manager may listen while providing assistance that only the customer service representative can hear. In a “barge” call monitoring instance, the manager may join the customer service representative in talking directly with the customer. 

Per the California Invasion of Privacy Act, business and individuals can face up to $5,000 in penalties or three times the amount of damages suffered for violating the law and recording a call without the consent of those recorded.

How Far is CIPA’s Reach?

Google is facing a proposed class action lawsuit alleging the internet giant violated the California Invasion of Privacy Act, Invasion of Privacy under California’s Constitution, the Federal Wiretap Act and Intrusion Upon Seclusion.

Filed in the U.S. District Court for the Northern District of California, the class action lawsuit alleges Google continued tracking the browsing activity of people using the internet when the people believed tracking had been turned off because they had entered “private browsing mode.”

Google advises internet users to launch a browser in “private browsing mode” to stop searches you do or sites you’ve visited to be saved to the device or browsing history. Google says the “private browsing mode” works in Google Chrome, Firefox, Microsoft Edge and Safari.

Plaintiffs in the case allege that Google actually still collects the user’s browsing information.

According to the National Law Review, Jose Castaneda is a Google spokesperson who argued that “Incognito mode in Chrome gives you the choice to browse the internet without your activity being saved to your browser or device. As we clearly state each time you open a new incognito tab, websites might be able to collect information about your browsing activity during your session.”

Plaintiffs disagree, and say that they were duped into believing browsing data was not being recorded by Google, not simply that their own site searches or website visiting data would be unavailable to themselves later.

According to lawsuit documents, plaintiffs are seeking damages of a minimum of $5,000 per class member, which could include millions of Google internet users.

Lack of CIPA Compliance: Steps To Take 

The best thing you can do to protect your privacy is to pay attention. If you receive a call from a business in California, listen for a message notifying you that you are being recorded. If there is no notification, you cannot be legally recorded. If you think you are being recorded but the caller hasn’t asked for your consent, you can always ask. In fact, you can ask at the beginning of any call whether that call is being recorded.

Upon request, some companies will stop recording your call, but others may refuse. According to Plaintiff Magazine, it’s unclear whether or not such a refusal is legally actionable. If you are on a call and learn part of the way through the conversation that you are being recorded, staying on the line may be seen as consent to that recording. If you are on a call and learn that you are being recorded against your wishes, make sure you know the company name and hang up. You can contact a CIPA compliance lawyer to see if you are eligible for damages.

Finally, to protect your privacy on calls, be aware of documents you sign. Some businesses include recording permissions in their privacy agreements. If you aren’t comfortable being recorded, make sure to look for language that mentions recording all future calls.