Communication recordings without one’s consent is a hot topic today. The leaking of banned NBA team owner Donald Sterling’s conversation has undoubtedly further ignited the debate, causing individuals to question the real law. What limitations or guidelines are set in place to protect individual’s privacy rights during phone call communications? Is it sufficient to have one party consent to the recording or are both parties required to consent? These are just a few of the questions being pondered. Let’s take a brief look.
First up is the Californa Invasion of Privacy Act or in short, CIPA. While not first in order of precedence, its overreaching applications have caused it to become first priority for businesses determining their communications recording procedures and protocols. CIPA was enacted in 1967 to protect Californian’s right of privacy. The California legislature declared that “the development of new devices and techniques for the purpose of eavesdropping upon private communicates … has created a serious threat to the free exercise of personal liberties.” Thus, section 632 of CIPA was enacted to require all-party consent for recording confidential communications. Later CIPA was amended to add section 632.7. This section specifically prohibits the recording of any telephone call in which at least one of the recipients is using a cordless or cellular telephone. Note, that section 632 is limited to confidential communications while 632.7 is not – we will come back to this!
Next, there is the Federal Wiretap Act, which governs call recording under federal law. The Act permits the recording of calls, so long as at least one party consents. Approximately 37 states follow this same concept, rendering the taping of calls by a business and its customers ok, since at least one party involved (the business) gives consent. In stark contrast, twelve states and the District of Columbia mandate that all participants in the call must provide consent before it can be recorded.
So, at this point things seem pretty straight forward right? When deciding the applicable law of communications recording on a federal level apply the Federal Wiretap Act, and for each state depending on their law apply one of the two rules previously stated… But no so fast, the ever long reaching CIPA puts quite a wrinkle on all of this. While in a vacuum CIPA only applies to communications that take place in California, cases such as Kearney have exponential multiplied its effect. In *Kearney*, the California Supreme Court unanimously held that CIPA protects all Californians while in California – even against the recording of communications by people located in other states where the other states’ laws would permit the recording. Thus in effect, CIPA has become what controls businesses’ decisions with respect to recording customer calls. While CIPA is primarily a criminal law, it permits civil claims with statutory damages of $5,000 per violation, making it a lucrative target for plaintiffs.
All of this has led most business to err on the side of caution and implement a system to ensure that all callers hear an automated notice before recording begins, “This call may be recorded for quality assurance purposes.” It’s the same notice that we all hear anytime we pick up the phone to call a business. I focus on the ramifications felt here by businesses because they prefer to record calls for a large number of reasons; accuracy, quality assurance, in-discrepancies, etc…
You may remember that section 632 of CIPA is limited to confidential communications and sect 632.7 strictly prohibits the recording of calls involving a wireless or cellular phone. Due to the verification methods used to confirm each customer almost all business calls with a customer are considered to have “confidential communications”. Moreover, because such a large majority are made involving either a cellular or cordless cordless telephone it would not only tremendously expensive for a company to attempt to parse these calls out, but likely not effective either. Hence why most companies have decided to go with the blanket notice statement. As the laws continue to develop there may be some clarity obtained, but until then you can expect to continue hearing our favorite disclaimer, “this call will be recorded…”
Im interested to know, does the notice actually affect anyone? To a large degree I feel that we have been desensitized to the warnings. A few businesses have been hesitant in applying the notice for fear that it will affect their customer perception, but I doubt that it will. Personally, when I hear the notice today I don’t think, “ah, sketchy business” I think, “oh, business as usual.” What about you?
Read this attorney’s entertaining and informative article about his experience with CIPA and how it impacted his client’s business, The Tricky Business of Call-Recording Litigation.
Wait, are you recording this?!?