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3.18.24 – SSI – Ken Kirschenbaum

Most everyone knows that it’s illegal to record telephone calls. Actually, the laws are fairly consistent that it’s a crime to mechanically intercept, listen in or record by mechanical means another’s conversation.

The laws are found in federal law, applying to all states, and just about every state. There are some exceptions to the prohibition, including:

  • Law enforcement is often exempted, though even they may need a court order
  • Court order gets you an exemption
  • One party to the conversation can consent to the recording or listening in without the other party’s consent when it’s federal law being applied and in some states, known as “one-party” states; some states are “two-party” states, which means all parties to the conversation must consent.

Considering Several Scenarios

Here are a few scenarios. Let’s see how you do. Which are illegal?

  1. You’re at a restaurant and you listen to a conversation at another table.
  2. You happen to be in earshot of other people talking and you listen.
  3. You use a device that allows you to pick up conversation from a distance to listen in.
  4. You tap a telephone line.
  5. You pick up a phone extension when others are talking without them knowing.
  6. You call and the first thing you hear is an announcement that the calls are being recorded. You stay on the line.
  7. After the announcement that calls are recorded, you hear intermittent beeping while on the phone.
  8. You hear an announcement that calls are recorded and, if you don’t want to be recorded, you should hang up. No other number is provided that isn’t recorded.
  9. You’re in a one-party state and one person consents.
  10. You have listening devices in your home or business that permit you to listen and/or record conversations, with or without signs announcing the devices.

Answer: Only 1, 2 and 9 are clearly legal.

Customer Service Calls

Here’s the topic I had in mind when I started this article. Anyone who has called customer service has experienced a recording that calls are recorded? If you stay on the line, does that mean you consented? I don’t think so and don’t know if any court has decided the issue.

I think you would have to actually consent to the recorded call — not just stay on — unless you’re in a one-party state. (The party you called has consented by arranging for the recording.)

Signs in your home or store mean nothing. Certainly, they are not express or implied consent. Unless consent has been expressly given, there would be no proof acceptable in court that the person knew about the recordings — much less consented to them.

If you go on the internet for advice on this topic, you are going to find plenty of advice. But, if you read carefully, you may find that it’s mostly speculation or conjecture. There are no cases. And, if there are, they haven’t had sufficient impact on other cases.

There seem to be a lot of reasoned exceptions based on what amounts to implied consent, but there is no legal authority for those opinions and there are no laws that mention or sanction implied consent that I am aware of [which doesn’t mean there aren’t any].

Federal and state laws can be found on the K&K website. We make no guarantee the site is up to date, however.

Addressing Murky Issues When You Record Calls

Why is there such a paucity of case law or corrected legislation to address the murky issues? Most likely, it’s because the issue rarely arises outside of challenges to law enforcement wire taps (or lack thereof).

There have been court cases where the intercepted conversations were so egregious — for example, involving child abuse — that the court permitted the recorded conversations into evidence. Most improper interception or listening probably doesn’t see the light of day, so no one is the wiser.

The audio statutes haven’t kept pace with technology. Most people have devices in their home or on their work desk listening in all the time, accumulating data and sharing it with who knows who. If there have been lawsuits about this, I haven’t heard about them.

It’s more than likely that when the device is purchased and signed-in the user has consented to the listening and data collection, but that would not constitute consent by others in the room at any particular time. What do you think?