The Complicated Legality of Voice Recording in 2013

The US Justice Department is in hot water this month due to revelation that they secretly seized the records of hundreds of hours of calls made by Associated Press journalists and their editors. Phone records and phone recordings are a delicate matter on the political front, but also on the business and personal front.

legal-recordingThere are two main sets of telephone recording laws: government recording civilian laws, which are considered wiretapping and require a search warrant. And there are civilian recording laws, which pertain to businesses that record calls as a learning tool to improve their business’s customer service. These business-civilian recorded calls don’t require a warrant, but many states do require upfront notification before the recording takes place.

Voice recording is quite the hot topic on the telecom scene this year, with new legislation posed to make government recordings on civilian calls much less private. Both businesses and individuals should take note of the new legal engagements of voice recording in 2013.

State-by-State Business Voice Recording Laws

What makes business-civilian telephone recording laws a bit tricky is that recording laws differ by each state. Each state will generally fall into one of two categories: an “all-party notification” state or a “one-party notification” state.

All-Party Notification

All-party notification laws state that all parties involved in the phone call must consent to the recording. This often means that the caller will hear a recorded message at the beginning of the call, telling them that the phone call is recorded. If the caller does not consent to the phone call, they can chose to end the call with the business. If the caller does consent to the recording, they simply stay on the line.

There are 12 states that adhere to the all-party notification law. These states are:

  • California
  • Connecticut
  • Delaware
  • Hawaii
  • Florida
  • Massachusetts
  • Maryland
  • Michigan
  • Montana
  • New Hampshire
  • Pennsylvania
  • Washington

If the business is located within these states and wants to record calls, they must notify their customers that calls to the business are recorded.

One-Party Notification

All of the remaining 38 states (plus the District of Columbia) use the one-party notification classification. In these states, only one party is required to give consent to record a call. Sometimes that one party is the business itself, so when callers call the business they might not know that their call is being recorded.

If a caller in a one-party state records a conversation with someone in an all-party notification state, that caller is subject to the all-party notification laws. This was decided in the court case of Kearney v. Salomon Smith Barney Inc.

Common Forms of Recording Notification

The FCC (Federal Communications Commision) defines the accepted forms of notification for telephone recording by telephone companies as:

  • Verbal or written consent of all parties in telephone conversation before the recording takes place
  • Verbal notification before the recording is made, which is usually a voice recording informing the caller that the call is recorded
  • An audible beep tone repeated at regular intervals during the call to signal to the caller that the company is currently recording the call

Call recording is an invaluable tool for businesses. Recording calls allows businesses to better train their employees to know how to properly handle customer questions or complaints. Call recording is also important for recording evidence for situations like car accident claims and allegations of bank fraud.

Before a business starts recording, however, it’s important to fully understand recording laws. States might interpret the notification laws differently state-by-state, so it’s recommended that the business consult with a legal representative before making a final decision on their notification policy.

VoIP and and Wiretapping Legislation

In early May, word spread that the Obama administration was preparing to back the FBI’s plan to change current surveillance laws to give police greater ease in tapping VoIP calls.The new surveillance proposal would allow the FBI and other government agencies to wiretap many types of Internet conversations, including Internet calling (also known as VoIP).

Currently, if police request aid in call interception, providers are protected against legal ramifications if they are unable to successfully tap calls. With the new legislation, if the companies do not comply, they will face hefty fines.

Some industry insiders worry that stricter punishments will force some VoIP providers to move their company operations outside of the US if they are unable to adequately ensure interception service. However, these new terms are effectively the same as those already placed on traditional providers, and as VoIP is quickly outstripping traditional service as the major form of American telecom communication, legislation will need to find some way to keep up in such a way that the American public is protected with a safe national telecom service.

Call recording is a thorny issue in the US. Who’s listening to the call? Who’s recording? Does the caller know that they are being recording, and do they consent to the recording? Can they consent to the recording? For businesses and civilians alike, it’s important to understand how the current laws apply to them, and how future legislation might change standard business and personal practices.

Jennifer Cuellar is a technology writer out of San Diego, California. She covers the latest news about phone technology and how to compare business VoIP solutions.

 

It is highly recommended you seek assistance from your legal adviser. This is not intended as legal counsel.