Legal recording issues vary from one state to another, which makes it all the more important to recognize where the caller and call recipient are located as well as take note of call recording laws.

What Determines Legal Recording?

The criteria determining whether or not a call recording is legal is known as one party vs. two-party consent. A recorded call is legal in a one-party consent state if either of the people on the call has given their consent to the recording, but it does not require that both parties have consented.

Most legal issues associated with recording a call arise in two-party states in which both people must be aware of the recording and have consented to it. States like California use two-party rules such that a person who was illegally recorded may take action against the person who recorded a call without the consent of everyone on it.

There are 11 states with two-party recording laws: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington.

Federal law requires one-party consent, which can still apply if you are not a party to the conversation. This means that you can only record a phone call if you have a minimum of one party’s consent to do so. Thirty-eight states and the District of Columbia have one-party consent laws, providing the same level of protection as federal laws.

What Happens with a Recorded Call with People in Two States?

A tricky legal concern that is problematic for businesses and consumers alike is when one caller/recipient is in a one-party consent state and the other is in a two-party consent state. In general, it’s best to consider which state the recording device would be used, but most companies doing businesses across state lines should recognize how this might influence call recording.

Contacting a customer in California, for example, who has a reasonable expectation that they’ll be informed of a recorded call but later discovers the company was recording the call without their consent, could lead to a possible legal claim.

How Does a Consumer Consent To Call Recording?

After understanding which parties need to consent to call recording, consumers may wonder: how do I give or refuse consent to being recorded during a phone call?

Companies generally get consent by including a warning before a call. This warning may tell consumers that the call is being recorded for quality assurance purposes. If consumers stay on the line after hearing this warning, it’s usually considered to the consumer consenting to have the call recorded.

A company may be able to dodge liability by including this short warning, however, should a business fail to warn consumers that their calls are recorded, call recipients may be able to sue them.

A variety of companies have faced legal action for violating California call recording laws, including the state’s Invasion of Privacy Act, by recording phone calls without consumer consent.

Attorneys are investigating a variety of companies for potential violations, including Dermalogica, Swarovski, Drs. Foster & Smith, Mears Transportation Group, Romano’s Macaroni Grill, Southwest Rapid Rewards, United Airlines, PetSafe, Cannondale Bicycle Corporation, and Czech Airlines. However, other companies may be guilty of call recording law violations even if they are not listed as part of an attorney investigation.

Can Calls Be Monitored and Recorded?

If you have encountered a recorded call in a customer service setting, you may have also encountered a monitored call. These two techniques are commonly used in tandem by businesses wishing to improve processes, train employees, or create documentation for other purposes.

The law regulates call monitoring in a similar way to how it regulates call recording. At the start of a call, you may be notified that your call may be monitored or recorded.

Mindsight.com explains that businesses can use a range of call monitoring techniques, both with or without call recording. According to Mindsight, a party who wishes to monitor a call can either “listen,” “whisper,” or “barge.”

In the case of “listening,” a manager or other employee may listen to the call to hear how the customer service representative handles a call, or how a consumer responds. In this instance, the third party does not participate in the conversation.

If “whisper” is used on a call, a manager or another party can communicate with the customer service representative without the consumer being aware. This may happen if the customer service representative needs assistance or is learning a company’s processes.

The most obvious form of call monitoring is a case in which a third party “barges” into the call. In this instance, both the consumer and the customer service representative can hear the third party, who is an active participant in the conversation.

Are There Repercussions for Violating Call Recording Laws?

Capturing a recorded call without the required consent may result in legal proceedings, depending on the situation. An illegal recording carries repercussions if the non-consenting party finds out about it.

The most commonly recorded calls include client meetings, contact with a customer service department, lectures, conference calls, and interviews. With any person using these kinds of calls and recording the information that goes along with it, a careful review of applicable call recording issues should be completed.

If a call was recorded without permission, that person might be able to use the information to file an invasion of privacy lawsuit.

Federal and state laws do not always match up when it comes to illegal recording laws. If a recorded call did not involve the consent of a party on the call, it’s likely that the strictest applicable law will be applied in determining whether there are any damages.

If you think that you received a call that was recorded illegally, consider speaking with a lawyer.