In the age of technology, many consumers may think that because they are able to record phone conversations, it is legal to do so. But 11 states, including California, require two-party consent to record,according to Rev.com.

In addition to California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington are “two-party” jurisdictions, meaning both parties in the conversation must consent to the recording. Federal law, as well as laws in the 38 remaining states and the District of Columbia, are “one-party” jurisdictions. Recording laws for each state can be found in the Reporter’s Recording Guide published by the Reporters Committee for Freedom of the Press.

What is Meant By Two-Party or One-Party States?

The terms two-party and one-party refer to the level of consent needed before attempting to record a phone conversation. In a two-party jurisdiction like California, both the caller and the person called need to be advised of the intent to record the phone conversation by either party and permission must be expressly given prior to the undertaking with almost no exception.

In reality, the term used should be “all-party.” If the caller is a customer and the recipient is a customer service representative on a business support line, the employer needs to have a contract of ongoing permission to record as well.

In a “one-party” state—which is also the federal default law—only one person or party to a conversation needs to give permission to record. It gets dicey and confusing when other concepts are taken into consideration, such as the notion of implied consent, whether the phone call originated or was received in a state with a one-party law and the other participant is in a two-party law state.

What is Implied Consent?

Implied consent is often given by a caller to a customer support line when he or she is subjected to a pre-recorded warning of the intent to record the phone conversation. When this intent is verbalized to the caller and they choose to remain on the line, they have in effect said that recording is okay.

Businesses that operate in multiple states or internationally have largely been responsible for pre-recorded warnings on support lines. This has been a successful attempt to cover legal bases in multiple jurisdictions.

Typically federal law preempts state law, according to Life Hacker.com, but the opposite may be true for states whose laws create greater privacy protections.

The California Invasion of Privacy Act

As with federal law, the California Invasion of Privacy Act (CIPA) places great legal emphasis on whether the participants had a reasonable expectation of privacy.

Telephone conversations are almost always interactions expected to be private, even if they are conducted at a restaurant table or on a street corner, while a heated verbal argument between two people on the same corner might not carry that expectation of privacy. Two-party state laws still specify requirements for recording such an interaction—video may be okay, while audio is not—but that is a separate issue.