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I am pretty familiar with the legalities of USA one-party and two-party recording laws, but there is one piece of the puzzle that doesn't seem clear.

For some background, I received a call from a Missouri number (landline). We discussed some things and figured out how we wanted to handle them. I then asked if the call was being recorded. The caller said "yes" and he was located in Kansas. I told them that was illegal (I will get into the why in a moment). I was in Missouri at the time the call (cell:T-Mobile) initiated. (Both are one-party consent states.)

Now for the "why". At the surface, this looks legal. But my understanding is that if the call is routed by the phone companies through a state that is a two-party state (e.g., California), it must follow the two-party consent rules of recording. Since all calls are digital and managed by computer network routing algorithms, it is completely feasible the call could be routed through a two-party state.

Since they failed to state that the call was being recorded at the beginning of the call (and there were no distinctive beeps), I believe they are in violation of the law (as it would be nearly impossible to prove where the call was routed without tons of digging through multiple phone company records, switch logs, discovery, etc).

When I have posed this question to lawyers I have worked with in the past, they get that glassy-eyed look and don't really know how to respond. So I figured a larger audience with a more technical understanding of routing, might be a better fit for my question.

Thank you for your time.


Update 5/21/21: I found an occurrence (from the Hobbs Act info @bdb484 provided) where a call in Georgia was routed to Florida then back to Georgia. Here's the source information: https://casetext.com/analysis/interstate-offenses

United States v. Drury, 396 F.3d 1303 (11th Cir. 2003)

The initial panel decision in this case held that use of a telephone to make an intrastate phone call was not sufficient to create federal jurisdiction under the 2002 version of 18 U.S.C. § 1958, the murder for hire statute. Though the telephone system is an instrumentality in interstate commerce, the statute, as construed by the Eleventh Circuit, requires a call that actually travels in interstate commerce. The element was actually satisfied in this case, because the cell phone call relayed the signal from a place in south Georgia, to a tower in north Florida and then back to the recipient of the call in south Georgia. Though the caller and recipient of the call were in Georgia, the signal actually traveled in interstate commerce. The statute was subsequently amended to specifically provide for a conviction if a facility of interstate commerce was used – i.e., a telephone – even if the call was purely intrastate.

While it doesn't answer my question, it is interesting that it was important to recognize that the call "relayed the signal" through a two-party state.

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    Do you have a source for the claim that consent depends on how the call is routed?
    – Just a guy
    May 20 at 17:56
  • I believe I came across the information a few years ago, so I don't recall the source. If I had that, my question would be more succinct. I will do some more digging on Google and the FCC site.
    – Nick Allen
    May 20 at 18:22
  • Thanks. That'd be helpful. (I ask because I have not heard this before and didn't see anything about it in a quick search.)
    – Just a guy
    May 20 at 21:03
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    It's far from clear that having the call routed through a state gives that state jurisdiction. But even if it does, I don't think it makes any practical difference. His recording would only be illegal if the call actually was routed through California, and in order to convict him of anything, the prosecution would have to prove that it was indeed routed through California. And if as you say it is not feasible to determine the routing, they would be unable to do that. May 20 at 21:06
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    Tracking a phone call's movement from state to state is a fairly routine matter for most prosecutor's offices, especially at the federal level, where this information is critical in wire fraud cases, Hobbs Act cases, etc..
    – bdb484
    May 20 at 22:33
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The courts of Washington will not apply the law of Tennessee in an action somehow involving something about Tennessee, they will apply the laws of Washington. If neither end of the conversation is in an all-party state, no party has standing to sue under the laws of some other state. If a person in Idaho calls a person in Oregon and the call is routed through Washington state, neither party can sue under Washington law. In all 50 states, there is an "exception" to the consent requirement when the "interception" is due to routing / switching, otherwise it would be illegal to call from house to house if you don't have a single wire between the houses (never the case). No state has a law that imposes two-party state law in calls that pass through a two-party state.

The federal wiretapping law say you may not intercept any wire, oral, or electronic communications without consent, then sets up the definitions to encode the exceptions. For example, "aural transfer" is a transfer containing the human voice at any point between and including the point of origin and the point of reception (anticipating the need for connections), and "intercept" means "acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device" (a hearing aid is a device). But then "electronic, mechanical, or other device" is further defined to exclude a hearing aid, or also they exclude

any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties

which is a good thing since the telephone is a device, and the switching system is a system used to make a phone call possible, but it intercepts under the ordinary meaning of intercept. Intercept has a specific, narrow meaning. The law of Florida is very similar

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  • This is useful information. Do you have a reference or two about the "exception" so I can do more reading on it. I just don't have the right words to dig deeper at this time, but would love to understand it better. Thanks!
    – Nick Allen
    May 21 at 17:16
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It depends on what 2-party consent actually means in the state where you want to challenge the legality of the call. In the state of WA, simply continuing the conversation, after being notified that the call is being recorded, constitutes consent to the recording.

The situation you are describing somehow reminds me of the Schrodinger's cat. The call was illegal until you asked the question. But since you have been notified (as a result of asking the question), it became legal at the moment of notification. Certainly any part of the call that takes place after you have learned that it was being recorded would be legal in WA.

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    I love that you brought up "Schrodinger's cat". That's pretty much how I felt when I went from not knowing to knowing about the call being recorded.
    – Nick Allen
    May 21 at 17:25

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