Privacy Laws and Notice Requirements for Electronic Recording of Telephone ConversationsThe information herein is public domain general information concerning electronic recording of telephone conversations.
sipIQ, Inc. is not dispensing any legal advice, nor does it profess the accuracy of the information provided. If you have questions concerning legal implications of the following information, specific issues related to taping, how these issues apply in particular states or the legal ramifications of the use of this service, you should contact an attorney for advice.
sipIQ, Inc. is not legally responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its services by a purchaser or other party whether legal or illegal. It is your responsibility to acquaint yourself with the proper knowledge for legal use of these services. Please see warranties language below.
There are both federal and state statutes governing the use of electronic, mechanical or other device recordings. The unlawful use of such equipment can give rise not only to a civil suit by the “injured” party, but also criminal prosecution. Accordingly, it is critical that you know the statutes that apply and what the rights and responsibilities are when recording and disclosing communications.
Call recording laws vary from state to state. These laws pertain to obtaining either single party (only you, the caller need to provide consent) or multi-party consent (all parties on the call need to provide consent) before a call can be recorded. If you are calling from or to a multi-party consent state, then the consent of all parties on the phone is required to record the call. If you are calling from and to a single party consent state, then additional consent is not required. The following links are provided as a guide on federal and state call recording laws but by no means is this information the ultimate source on the subject and is included for informational purposes only:
2. Federal and State Laws
3. State Statutes
4. Business Telephone Exception
5. Evidentiary Issues
6. Recording Telephone Calls with Parties in Different Jurisdictions
7. The Role of FCC
1. ConsentUS Federal laws only require a single party to consent to recording a telephone conversation. However, individual states have laws that require multiple parties to a call to provide consent. Federal and many state laws do not protect recording of calls for criminal or tortuous purposes.
2. Federal and State LawsFederal Statute: Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C.§§ 2510-2522. There are two exceptions to the prohibition against call monitoring:
1. Consent of at least one party to the call
2. Ordinary course of business exception
The ordinary course of business exception applies where the call recording concerns the legitimate operation of and during “ordinary course of business”.
The Federal Communications Commission (FCC) (48 C.F.R. Sec. 64.501) requires at least one of the following measures be taken when recording an interstate phone call:
a. Both parties consent to the recording; or
b. The recording party must give verbal notification before recording; or
c. There must be a regular electronic beep tone during recording.
3. State StatutesWhile the U.S. federal law only requires one-party consent, many states have drafted different statutes. In some states, all parties must give their consent or at least be notified that the call is about to be recorded (with necessary opt-out option: if you don’t like them to record the call, you can ask them to stop recording). A 1950s Supreme Court case affirmed that the federal law does not supersede state authority/statutes unless the call or the tap crosses state lines – which is why each state has established.
Individual State laws can be found at https://www.aapsonline.org/judicial/telephone.htm and in depth information can be found at http://www.rcfp.org/taping/taping.html