Call recording laws are not really black and white, as the laws vary state to state. Generally, it is required that one or both parties consent to having a telephone conversation recorded before it is legally permissible—with a few notable exceptions, depending on where you reside. United States federal law and state laws vary somewhat.
U.S. federal law generally provides that a call may be recorded if one person to the call consents. This is known as “one-party consent.” Thus, any person who initiates and participates in a call may also record that call under federal law, with a few exceptions.
Most state laws are similar to federal law in this regard. However, some states require the consent of all parties to a call, called “two-party consent” rules.
For example, California is a two-party state. In the case of Annette Jonczyk v. First National Capital Corporation et al., a plaintiff brought a class action lawsuit against her husband’s employer for allegedly recording employee telephone conversations. What makes this case rather tricky is that First National is a California company, but the plaintiff resides in Missouri, which happens to be a one-party state. The ultimate decision was in favor of the plaintiff, as the judge weighed in favor of Missouri law, as not to bring liability to a resident versus a corporation.
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Twelve states generally have laws that require the consent of all parties to a conversation. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.
There are important questions of law that must be addressed when it comes to call recording. Both federal and state statutes govern the use of electronic recording equipment. The unlawful use of such equipment can give rise not only to a civil suit by the receiving party, but also criminal prosecution.
Interstate phone calls add an element of difficulty. In Krauss v. Globe International, a New York trial court was asked to apply the Pennsylvania wiretap law — a two-party consent state — to a call placed by a prostitute in Pennsylvania to a man in New York. Unlike the Pennsylvania wiretap statute, the New York and federal statutes require the consent of only one party. The call was recorded with the woman’s consent by reporters for The Globe, a national tabloid newspaper. The court ruled that the law of the state where the “injury” occurred, being New York, should apply.
In the interest of call centers and providing customer service, laws are the same. If you run a call center, check with your local and federal laws to ensure compliance, lest you run into a hefty fees and prosecution. It is always best to err on the side of caution and learn from cases past.
Edited by Alisen Downey