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Monitor Recording Legal Issues
Legal Concepts to UnderstandI'm not a lawyer so this isn't official legal advice but I have significant legal experience and offer some information as a guide to doing research on legal issues regarding recording phone conversations. Having said that, here are important concepts to research. The information here is probably better than what you would get from the average lawyer, but not as good as advice you would get from a lawyer who has experience in this area of practice.
- Jurisdiction/Venue - That is where the act is taking place. If both parties are in the same state then the laws of that state apply. If the parties are in different states (US) then federal (national) laws apply. If the parties are in different countries it's anyone's guess what laws, if any, apply. US Federal law generally supports single party consent.
- Laws Vary - different areas have different laws. What is legal in one area might be illegal in another area. You should be aware of the laws that apply to your geographic location.
- Consent - Generally if both parties consent then it's legal. If you are recording conversations without either party consenting it is generally illegal. If one party knows and the other party doesn't it's one party consent and it varies by geographic location. If one party is allowed to record a call then all parties are allowed to record the call. Consent applies to everyone.
- Purpose for Recording - Recording laws pertain to privacy issues. The "expectation of privacy" is an important legal concept. If you are recording a conversation for your own use as a means of enhanced note taking and the recordings never get out then that is very different than recording conversations and posting them on the net or using the recordings in court.
- Private Recordings - Recording conversations and never making them public if you are one of the parties is probably legal. For example, you might record calls so that if you are talking to a tech support person and you want to use it to help you remember the instructions you were given, that is very different than recording a conversation for malicious purposes. However, if you are involved in litigation and you are making recordings those recordings might be discoverable as evidence by opposing counsel. So if you are recording conversations as a memory enhancer then you should have a cron task that deletes old conversations after a few days.
- Workplace Recordings - Laws vary when it comes to recording employee conversations by employers. If you are an employee using a company phone you should be aware that your call might be recorded by the company. If you are an employer and you are thinking about recording employees calls then you should consult a lawyer. If you have disclosed to your employees that their calls are being recorded you are on safer legal ground than if you are doing it in secret.
- Debug Recordings - Generally tech staff has legal protection (immunity) to record calls for reasons relating to system maintenance. If, for example, you are experiencing audio quality problems and you want to record conversations in relation to finding packet loss, that would be an exception to the law. In these cases techs are not really listening to conversations they are working on equipment. If you are recording conversations for debugging reasons then you should make sure the recordings are secure and don't fall into the wrong hands and that they are deleted afterwards. A tech has a legal duty to act in a responsible and professional manner when doing system maintenance.
- Getting Consent - It is probably best practice to start the recording and agree at the start of the recording to have the conversation recorded and then again at the end of the recording that the conversation was recorded. That helps to eliminate any claim that one party didn't know they were being recorded.
- Criminal vs. Civil Law - Even if recording is legal if you use the recording in an improper manner you might get sued and lose a lot of money. So don't rely on the fact that recording the call was legal as a protection from civil liability. It is also not legal to legally record a phone call for an illegal purpose.
- Legal Research - most states have laws posted on the internet. What the law says and what it means are often not quite the same thing. You also want to read case law to see how courts have ruled on issues similar to yours. Once you find the law you can type that law name or number into Google and find cases that contain a reference to that law. Google is a mighty tool for legal research. If you are going to consult a lawyer it is better to do the legal research yourself first so that when you talk to a lawyer you already have some understanding of the legal issues. Most lawyers aren't up on phone recording law so don't expect them to just know it off the top of their head. If you do the research yourself and you figure out for sure that what you are about to do is clearly illegal, just don't do it.
- Getting Legal Help - If you go to a lawyer, find a lawyer who knows this area of the law. The law is a big place and the average lawyer probably knows less than you do about recording conversations than you do. They do understand law and legal concepts but often don't know anything about technology. So if you are going to ask a lawyer don't just ask any lawyer, ask a lawyer who has experience in this field of law.
Legal Gray Areas
One thing to keep in mind is that most of the current laws were passed in the PSTN days before cell phones and VoIP networks and many legal issues are unsettled as to if there is a law that applies to specific modern situations. I challenge lawyers to thinks through a few legal puzzles and comment on them.
In the following examples I call someone and I am recording the call without their knowledge and consent. My phone call is being routed through a remote Asterisk box.
- I am on my cell phone in a one party state recording a call and I drive across a state line into a two party state. Am I breaking the law?
- I am in a two party state but I call an Asterisk box in a one party state where I initiate a call to someone that I record.
- I am on an airplane flying over a one party state and I initiate a call. During the conversation the plane is rerouted to avoid a storm and crosses briefly into the airspace of a two party state. Have I broken the law?
- If I call a business and an automated system answers and says, "This call may be recorded", is that consent? (My personal opinion is that it is.)
- I call from one state on my ATA/IP phone. My Asterisk machine is in another state, and I call someone on a landline in a third state. Who's rules apply? Brain-breaker My ITSP terminates the call from a fourth state.
Legal issues can get interesting. I doubt the location of the recording equipment is relevant but if the Asterisk box initiates the call it might be. If I am a resident of California with a California cell phone number but I'm visiting another state and I make a recorded cell phone call, what state's laws apply?
The point is that if you are doing something really tricky you may be the first case ever that the courts see to determine what the law means in your specific instance. Laws are tied to the concept of Jurisdiction which is a geographic location. If you are on one side of a line on a map you are legal. Cross the line and you go to jail. The Internet, on the other hand, is a world without location. It is a world where space itself collapses into a single point and everyone is in this realm together. That's a concept that the law hasn't really addressed.
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