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Is It Legal? How Phone Recording Device Laws Apply (or Do Not Apply) To You

by Craig

Most Americans today own some kind of phone recording device, either in the home or the office. Recording phone calls is an excellent way to gather information that would be too difficult, if not impossible, to directly acquire.  There are many reasons for recording phone conversations, ranging from something as common as routine quality checks for business calls, or to more serious ones like suspicions of a cheating spouse, surveillance on a wayward child, or even for the collection of court evidence.

Getting a phone call recorder takes very little time and effort; however, there is more to the process than meets the eye. Most people who use these devices overlook the fact that even the cheapest recorder is governed by state and federal laws, so that every recorded call must comply with them.

Now, there are many articles out there that explain these laws in textbook manner, but very few manage to shed light on the nuances of each. Let me give you the most common (and legal) practices that keep the phone recording device out of the judicial radar’s range.

“Give me the crux.”

All states, by default, are subject to Federal statutes unless the state in question has a specific law for it. In general, one party’s consent is sufficient to legitimize call recording, with the exception of about 11 states (CA, CT, DE, FL, MA, MD, MI, MT, NH, PA, and WA).

Why do so many companies and private individuals get away with doing it?

Phone recording device laws may seem straightforward at first glance, but they have quite a few exceptions. As a rule of thumb, the laws that govern the location of the recorder will be the law that applies. Thus, if you are not in those 11 states, and you’re one of the participants in the phone conversation, you may record the call without having to ask for consent from the other person/s.

Business calls are also exempted from the rule. This is why customer service calls are (more often than not) recorded automatically. Note, however, that you can also record these calls without asking for permission. This becomes handy in cases where you deal with lazy technical support reps (and you probably know what I mean).

The definition of the word “consent” also varies from state to state, and these subtle variations may have profound consequences. For example, California requires consent of both parties, but the consent need not be explicit. A simple beep at the start of the phone conversation is sufficient, if clearly audible to the other party. That is, a simple notification (the beep) that is not followed by an objection may be considered good enough.

Moreover, if the call that you will be recording is that of a minor who is under your guardianship, then your consent is their consent. Basically, this means that you can spy on your kids without the fear of getting sued by the ACLU or whatnot.

Phone recording device laws clearly have some exceptions (or some loopholes if I may say). However, remember that laws can be a very tricky business, so if you are using the device to gather evidence, then consulting a legal professional is still the best way to learn about them.

cricket wallace July 16, 2011 at 9:21 am

In the state of California, is it lawful to record a public entity that is involved in real estate fraud who practices the “quality assurance recording” of it’s own?

Todd July 24, 2011 at 9:50 am

Hi Cricket, for phone recording laws regarding specific circumstances such as this, it would be best to consult with an attorney in your state because you may end up needing the recording files to be admissible into a court.

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