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Assuming a two-party consent state.

If a company notifies you that all calls are (or may be) being recorded, can you then record your conversation with the customer service representative without notification?

Rationale: notification has already been served and there can be no assumption of privacy on the CSR's part.

  • 1
    Is their notification "are being recorded", or is it "may be recorded"? – user6726 May 12 '17 at 17:21
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    That's an interesting point. Does it make a difference? A good answer would incorporate whether it does. – RoboKaren May 12 '17 at 17:26
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    It could. The rationale would be that if A says "may" but knows it is not being recorded (on their side), they might conclude that since B hasn't likewise notified, then A can "know" that the conversation is not being recorded. This is an interesting case-law research question. – user6726 May 12 '17 at 17:29
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    The company may know but the individuals CSRs may not know if their particular call is being recorded "for quality and training purposes." Panoptical management would dictate that you don't tell the CSR when they are being monitored so that they assume it is constant. – RoboKaren May 12 '17 at 21:03
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    One meaning of the word "may" is expresses a possibility. Another meaning of "may" is to give permission. I've always assumed that "This call may be recorded" meant "You have our permission to record this call". However, I'm not a lawyer. – James May 15 '17 at 14:04
2

No. Logically, your consent to their recording is not the same as their consent to your recording. It's a question of who has the right to make a copy. If you don't want them to record you, stop talking as otherwise you have given implied consent. If they don't want you to record them, you first have to tell them you're recording, so as to obtain [or infer] the necessary consent.

(Expanded discussion) By comparison, if you're sitting face-to-face and whip out your recorder when they whip out theirs, that's clearly not a "secret" recording by either of you. If, however, your recorder is hidden in your purse, and not all parties consent to being recorded, that would be a felony in some states. By analog, unless the CSR in the OP's scenario knows of the second recording being made by someone else on the line, making it would almost certainly be a violation.

Sample of such a law: MA General Law c. 272 s. 99, in part:

(B)(4) The term ''interception'' means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication;

(B)(3) The term ''intercepting device'' means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication... (not including hearing aids or telephone instruments provided by or being used by a common carrier).

There are limited exemptions for authorized law enforcement actions, among others not directly relevant here.

  • So do you know of any case whatsoever where (in an all-party jurisdiction) A defended himself against a wiretapping charge based on the fact that B said "this call may be monitored?". Even one supporting case would address the question of what the law actually is, as opposed to how you might argue if you wanted to establish the law in an appeal. – user6726 Aug 9 '17 at 5:15
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    No, I don't know of any such case report. When laws are clearly written there may be no need to sue (everyone "agrees" what it means), let alone appeal, so there may never be any case finding that the obvious and natural interpretation is correct. – Upnorth Aug 10 '17 at 19:58
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    True, but the two party laws are not written to require express consent from all parties: a 1-party announcement suffices to defeat the expectation of privacy. Since you're suggesting that it takes express consent from all parties even in the face of a recording announcement, I thought you had some specific case law that supported that. See the OPs last sentence. – user6726 Aug 10 '17 at 20:26
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    I certainly didn't mean to suggest "that it takes express consent from all parties". I'm saying that the fact that you consent to their recording does not automatically mean they consent to yours and the law requires "consent of all parties" for EACH recording to be legal. – Upnorth Aug 11 '17 at 15:32
  • @user6726, that is a misstatement of the law. In a 1-party consent jurisdiction, there is no requirement that any party make an announcement because the individual making the recording counts as a party. Because the party making the recording is aware he or she is making the recording, one party to the conversation has consented. At the same time, it's an almost uniform fact across jurisdictions that recording a conversation to which you are not a party and have not received consent from at least one of the parties is illegal. – A.fm. Feb 5 at 3:00
1

It depends on how the law is worded. CA Penal Code 632 says:

(a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) per violation, by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
[...]
(c) For the purposes of this section, “confidential communication” means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes [...] any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

[emphasis added]

If you're told that a conversation may be recorded, then you can reasonably expect that the conversation may be recorded, so the California law would not apply to it.

A further issue is interpretation of "may". It is ambiguous as to whether it means "might" or "can". If the other party says "This call may be recorded", and "may" is interpreted as "can", then the other party has consented to the call being recorded. A case where the passive voice could have significant consequences; if they were instead to say "We may record this phone call", then, depending on the state law, things might be different.

-3

Yes. There is no reasonable expectation of privacy if the call starts out with a message indicating that the conversation is not private.

  • Do you have any case law that support your conclusion? There's a difference between a reasonable expectation, and actual knowledge of what the statutes and courts say. – user6726 May 12 '17 at 22:27
  • Reasonable expectation of privacy is a Fourth Amendment analysis and relates to government actions. Requirements for notification come from state-level statutes. – K-C May 12 '17 at 23:44
  • This answer is correct. In most states' statutes, as long as one party consents then the conversation may be recorded. Whether such a recording is admissible in court may be spread online is another matter. – Shazamo Morebucks May 13 '17 at 0:36
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    The question explicitly stipulates a two party consent state (otherwise it'd be moot). – RoboKaren May 13 '17 at 6:02
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    @KC, it also applies to privacy from fellow citizens. Private citizens have been successfully protected against 1st amendment encroachments based on their having supposedly violated the privacy of fellow citizens. E.g., photographing people through their windows, upskirt, etc. – JJBee May 15 '17 at 15:50

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