Your call cannot be recorded without your consent

Find out when someone is recording your call without your consent.
But remember, staying on the line is consent.

In California, it is a crime to record a conversation over the telephone without the consent of both the caller and the person called. This principle is referred to as the “two-party consent communication”.

Section §632 of the California Penal Code prohibits recording phone conversations without the consent of both parties. It makes it a crime to intentionally use a recording device, without the consent of both the parties on the call, to eavesdrop or record confidential information. It is a punishable offence to violate this provision. A penalty could include a pay fine of up to $2500 or imprisonment for up to one year; or both. It does not matter whether the recording was done through a telephone landline, a cellphone line or a computer line.

How do I know if my calls are being recorded?

There could be a few ways to find that out. Sometimes at the starting of a sales call, a recorded message states that the call will be recorded. It is a clear notice of the fact that your call is going to recorded. In such a case, by staying on the line, you are effectively giving your consent to record the call. However, at times they might be recording your conversation without notice and without your knowledge (hence without your consent).

Some recording devices give a recurring beep sound at regular intervals. Sometimes, there are clicks or bursts of static. You can assume that such a call is going to be recorded. Or that the supervisor of the customer service representative you are speaking to is monitoring (listening in to) the call. Call center supervisors often listen in on the conversations of their agents for quality control purposes. They say that their intention is to evaluate the agent’s skills in handling calls. Even if the purpose of the eavesdropping is training, the supervisor is still recording the call without your consent. Although the purpose of recording is not to gather your personal information, your consent cannot be assumed without notifying you of the same.

If you suspect that the caller is recording the call, the best way to find out is to ask them about it. Informing you that your call “may” be recorded is not the same as asking for your consent. Although it does give you the opportunity to terminate the call.

Problem of conflicting laws on interstate calls

The problems posed by this law fall into two general categories. Firstly, it is in the category of conflicting laws – the federal law requires only one-party consent. Hence, if you are a party to the call, either the caller or the person called, you may record it. The federal law only prohibits one from recording a call between two people without the consent of either of them. This crime would be known as ‘wire-tapping’.

Another problem area are interstate calls. Multitudes of business make sales calls from one state to another everyday. 35 states in the US have one-party consent laws. To date, the only states which have a two-party consent rule are:
California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, Vermont and Washington require two-party consent.

Which State’s laws govern a controversy

In a recent case, employees of a firm in Georgia recorded phone calls with clients in California. Naturally, the clients filed a complaint in California because the employees in Georgia recorded their conversation without obtaining their consent. The California court had to first decide which law should apply to the controversy – Georgia’s or California’s?

The Superior Court of San Francisco dismissed the complaint. The California Court of Appeals also upheld the dismissal. Hence, the plaintiffs brought an appeal before the California Supreme Court which ruled against the dismissal.

The California Supreme Court held that, indeed, there is a conflict between Georgia law and California law. The California Supreme Court compared the nature and strength of the interests of California and Georgia. It held, if Georgia’s one-party rule were to apply, the interests of California residents could be largely impaired. If they do not enforce the two-party consent rule, the privacy rights of California residents could be put at risk. On the other hand, the Georgia residents will not suffer much loss if they were made to notify the California residents that their call will be recorded and obtain their consent. This case still has to be tried to determine if the Georgia company’s actions were unlawful.

Confidential information

And this brings us to the second problem posed by applying this two-party consent rule. This restrictive rule applies only to confidential information. Hence if the information discussed during a recorded phone call is not confidential, would the two-party consent rule still apply? Some states make it a crime to record phone conversations where the content of the conversation is criminal in nature.

A new problem arises if one party informs the other, at the beginning of the call, that they will be recording the call. Say the other party, assuming that no confidential information would be shared on this call, stays on the line. But later into the conversation, you are going to share some confidential information. In such a case, would the consent obtained at the starting of the conversation continue throughout the phone call or not?

HANG UP!

The best thing to do, perhaps, is to hang up. If you suspect that someone is recording a personal or business call, just hang up. Even if you gave your consent at the beginning of the call let’s say. But then the other party tries to elicit personal or confidential information which you aren’t comfortable disclosing – you can hang up. If you’re uncomfortable with the fact that they are recording the conversation, you can just hang up.

The fact is, not all business callers inform the customers or clients that they are recording those calls. Quite often they just tell you that they “may” record the call. That is not enough to obtain your consent – hang up. You are certainly within your rights to hang up. It is the most effective way to show that you do not give your consent.

If you suspect that your call has been recorded without your knowledge or consent, please contact us. Your right to privacy is worth fighting for.

For any help you might need regarding the same, fill up the form to get in touch with a class action lawyer at ClassActionNews today.