While most states have one party consent laws, California requires that all parties to a phone call give consent before conversations are recorded.

The Golden State’s “two party consent” law makes it illegal to make a recording of a telephone call or other confidential conversation without the permission of all parties to said communication. While this law applies to conversations across the board (with exceptions made for law enforcement agencies investigating criminal activity), it is often invoked for cases in which a telephone conversation between a consumer and a business entity is recorded without the consumer’s knowledge or consent.

A recent investigation involving Mears Transportation Group is an example of alleged violations of this type. Earlier this year, a number of consumers reported that Mears Transportation Group, a Florida-based company specializing in luxury transportation, had been engaged in non-consensual recording of conversations with customers.

What is One Party Consent?

According to the Digital Media Law Project, the District of Columbia and 38 states allow the secret recording of conversations over the telephone or even in person, as long as one party to the conversation gives consent – even if the “one party” is the person who initiates the conversation.

This essentially means that if you receive a call from a company, a doctor or lawyer, your child’s school teacher or anyone else, it may be recorded by the other party without your consent or knowledge – because supposedly, the caller has already “consented” to having such a recording made.

If a third party eavesdrops, that would be a violation, since neither of the primary parties to the conversation would have any knowledge of the recording, although such secret recordings of private calls are considered legal if the person doing the wiretapping is doing it in the course of a criminal investigation and has a warrant to carry out such an action.

What is Two Party Consent?

Unlike one party consent jurisdictions, states with two-party consent laws require that both parties give permission before the conversation is recorded. In some cases, the permission can be implied rather than expressed. For example, if a company calls a consumer and there is a prerecorded message that states “This call may be recorded for training purposes” or some other reason.

In such a situation, if the person receiving the call chooses to remain on the line after hearing such an announcement, that is considered to be implied consent. If the recipient wishes to withhold his or her permission to have the conversation recorded, they simply hang up and end the call.

Many companies routinely record customer service phone calls for legitimate reasons. These recordings may be used in order to provide better training to employees, ensure that the customer’s request is handled correctly, or keep a record of the interaction. However, some consumers have reported that companies may not always abide by the law requiring them to notify customers beforehand.

Companies including Cannondale Bicycle Corporation, Czech Airlines, Dermalogica, Jimmy Choo, Romano’s Macaroni Grill, Smith & Wesson, and Vera Bradley have been accused by consumers of recording customer calls without their knowledge or consent. Unfortunately, it is often difficult to determine if you have been recorded without your consent. If you believe that a customer service call between you and a representative at one of these or another company was recorded, you may be able to speak with an attorney about your legal options.

According to consumer privacy protection laws, the company does not need to be based in California for the law to apply. As long as the consumer lives in California or another state with a two-party consent law, they cannot be recorded without their consent, even if the company is based in a one party consent state.

Which States Have Two Party Consent Laws?

The 12 states that require both parties to give consent before a conversation is recorded are:

• California
• Connecticut
• Florida
• Illinois
• Maryland
• Massachusetts
• Michigan
• Montana
• Nevada
• New Hampshire
• Pennsylvania
• Washington

In California, according to the Digital Media Law Project, conversations are protected only for situations in which one party has a “reasonable expectation” of privacy, i.e., telephone conversations. However, the law also extends to conversations held in public places, as long as there is that reasonable expectation of privacy (for example, in a restaurant).

Conversations that are held in public places where it is likely that the parties will be overheard may not be governed by the law, as the parties may not be able to prove that they reasonably expected privacy.

Violators are subject to criminal prosecution and may face civil liability as well. In some cases, people who commit call recording violations may be eligible for fines or legal charges including misdemeanor or felony.

What if My Phone Conversation is Recorded Without My Consent?

There have been numerous class action lawsuits in which plaintiffs allege that companies such as Amazon, Capital One, Mears Transportation Group and TGI Fridays made unauthorized recordings of their telephone conversations. Violators can be liable for up to $5000 per incident.