Telephone recording laws

Telephone recording laws are laws that govern the civilian recording of telephone conversations by the participants. Recording by government or law enforcement (wiretapping) are usually covered by distinct laws.

Telephone tapping is strictly regulated in many countries, "especially in all developed democracies, to safeguard the privacy of telephone users." Telephone tapping often must be authorized by a court, and is normally only approved when evidence shows it is not possible to detect criminal or subversive activity in less intrusive ways; often the law and regulations require that the crime investigated must be at least of a certain severity. In many jurisdictions however, permission for telephone tapping is easily obtained on a routine basis without further investigation by the court or other entity granting such permission. Illegal or unauthorized telephone tapping is often a criminal offense. However, in certain jurisdictions such as Germany, criminal courts may accept illegally recorded phone calls without the other party's consent as evidence.

Australia

The federal Telecommunications (Interception and Access) Act 1979 and State and Territory listening devices laws may both apply to monitoring or recording of telephone conversations.^[1] The general rule is that the call may not be recorded. Section 7 of the Telecommunications (Interception and Access) Act 1979 prohibits intercepting a telephone call. "Interception" is defined in section 6, of which one element is that it is made "without the knowledge of the person making the communication". There are exceptions to these rules in very limited circumstances, including where a warrant applies.

If a call is to be recorded or monitored, an organization must tell you at the beginning of the conversation so that you have the chance either to end the call, or to ask to be transferred to another line where monitoring or recording does not take place (if this is available).^[1]

Reasons organizations may monitor or record conversations could include:^[1]

• to protect you in your dealings with the organization
• to provide a record in the event of a dispute about the transaction
• to improve customer service.

In the state of Queensland it is not illegal to simply record a telephone conversation if you are a party to the conversation.^[2]

Canada

Organizations

In Canada, organizations subject to the Personal Information Protection and Electronic Documents Act^[3] (PIPEDA) must comply with PIPEDA when recording calls.^[4]

In order to comply with the PIPEDA, organizations should take the following steps when recording conversations:^[4]

1. The individual must be informed that the conversation is being recorded at the beginning of the call. This can be done by an automated recording or by the customer service representative.^[4]
2. The individual must be advised of the purposes. The organization must be clear about the purposes; an organization should not state that it is recording the conversation for quality assurance purposes if, in fact, the recording will be used for other purposes. Informing the individual of the purposes can be done in a variety of ways—verbally, by pressing a number on the keypad (in the case of automated messages) or with clear messages on monthly statements. (For example: If you have any questions about your bill please call 1-800-XXX-XXXX. Please note your call will be recorded for...) If the individual proceeds knowing the conversation is being recorded and the purpose of the recording, consent is implied.^[4]
3. If the caller objects to the recording, the organization should provide the caller with meaningful alternatives. The alternatives might involve not taping the call; visiting a retail outlet; writing a letter; or, conducting the transaction over the Internet.^[4]

Individuals

An individual may record a call as long as he or she is one of the participants of the call.^[5] The recording can be used as evidence in a lawsuit.^[5]

However, it is illegal to record communications that the recording party is not participating in.^[5] An illegal recording can lead to a sentence of up to five years in prison. Section 191 of the Criminal Code also outlaws surreptitious recording devices.^[6]

Denmark

Calls and conversations may be recorded by any active participant, with no requirement to make other parties aware of the recording. But forwarding or playing calls considered private is illegal.^[7]

Finland

In the case of private persons, calls and conversations may be recorded by any active participant. There is no requirement to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws, such as data protection (privacy) legislation, libel laws, laws governing trade and national secrets, and any agreements, such as non-disclosure agreements.^[8]

Recording of calls by a company or an employer is subject to data protection legislation and, as a general rule, requires informing the participants prior to recording.^[8]

Germany

Germany is a two-party consent state—telephone recording without the consent of the two or, when applicable, more, parties is a criminal offence according to Sec. 201 of the German Criminal Code^[9]—violation of the confidentiality of the spoken word. Telephone tapping by authorities has to be approved by a judge. For discussion on lawful interception in Germany please see de:Telefonüberwachung (German language).

India

In India, telephone tapping has to be approved by a designated authority. It is illegal otherwise.^[10] The Central Government or State Government is empowered to order interception of messages per 12section 5 of Indian Telegraph Act 1885.^[11] Rule 419 and 419A sets out the procedure of interception and monitoring of telephone messages. There is a provision for a review committee to supervise the order of interception.

Phone tapping is permitted based on Court order only and such permission is granted only if it is required to prevent a major offence involving national security or to gather intelligence on anti-national/terrorist activities.

Though economic offences/tax evasion were initially covered under the reasons for interception of phones, the same was withdrawn in 1999 by the Government based on a Supreme Court order citing protection to privacy of the individual.

As per Rule 428 of the India telegraphic rules, no person without the sanction of the telegraph authority, use any telephone or cause or suffer it to be used, purposes other than the establishment of local or trunk calls.

The Government of India instructions provide for approved attachments. There is no provision for attachment for recording conversation.

Italy

According to the Supreme Court of Cassation, recorded conversations are legal and can be used as evidence in court, even if the other party is unaware of being recorded, provided that the recording party takes part of the conversation.^[12]

Latvia

Calls and conversations by private persons may be recorded by any active participant. There is no requirement in laws to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws.^[13]

New Zealand

Recording of phone calls by private persons falls under interception-related provisions of the Crimes Act 1961, which has a general prohibition on the use of interception devices. An exception is made for when the person intercepting the call is a party to the conversation. There is no requirement that both parties be aware of the interception.^[14]

Romania

Intercepting communications falls under the provisions of the Penal Code and, in the case of electronic communications, under the Telecommunications Act (506/2004). The recording of a conversation by a private member to that conversation is specifically permitted. Nevertheless, while such recordings are legal, making use of them may fall subject to further civil or criminal law. Their admissibility as evidence also depends on the circumstances.

Sweden

According to Swedish Penal Code (Brottsbalken) (SFS1962/700) chapter 4, 8§ and 9§, it is illegal to tap telephone conversations. However, a participating part can record the conversation and the recorded material falls under other laws as any sound recording.

United Kingdom

England and Wales

The Regulation of Investigatory Powers Act 2000 in general prohibits interception of communications by a third party, with exceptions related to government agencies. A recording made by one party to a phone call or e-mail without notifying the other is not prohibited provided that the recording is for their own use; recording without notification is prohibited where some of the contents of the communication—a phone conversation or an e-mail—are made available to a third party. Businesses may record with the knowledge of their employees, but without notifying the other party, to

• provide evidence of a business transaction,
• ensure that a business complies with regulatory procedures,
• see that quality standards or targets are being met,
• protect national security,
• prevent or detect crime,
• investigate the unauthorised use of a telecommunications system, or
• secure the effective operation of the telecommunications system.

They may monitor without recording phone calls or e-mails that have been received to see whether they are relevant to the business (e.g., to check for business communications addressed to an employee who is away); but such monitoring must be proportional and in accordance with data protection laws and codes of practice.

This summary does not necessarily cover all possible cases. The main legislation which must be complied with is:

• Regulation of Investigatory Powers Act 2000 ("RIPA")^[15]
• Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 ("LBP Regulations")^[16]
• Data Protection Act 1998
• Telecommunications (Data Protection and Privacy) Regulations 1999^[17]
• Human Rights Act 1998

Under RIPA unlawful recording or monitoring of communications is a tort, allowing civil action in the courts. There is a summary of applicable rules on the Oftel website^[18]

Recording is sometimes advised, as in recording business transactions carried out by telephone to provide a record. It is sometimes mandatory; from March 2009 Financial Services Authority rules required firms to record all telephone conversations and electronic communications relating to client orders and the conclusion of transactions in the equity, bond, and derivatives markets.^[19] In November 2011 this was extended to cover the recording of mobile phone conversations that related to client orders and transactions by regulated firms.

United States

Federal law requires that at least one party taking part in the call must be notified of the recording (18 U.S.C. §2511(2)(d)). For example, it would be illegal to record, without notification, the phone calls of people who come into a place of business and ask to use the telephone. Telephone recording laws in most U.S. states require only one party to be aware of the recording, while other states require both parties to be aware. Better practice may be to announce at the beginning of a call that the conversation is being recorded.

Several states require that all parties consent when one party wants to record a telephone conversation.^[20] Telephone scammers and others intentionally violating the federal Do Not Call list may try to locate in those states, or use their area code prefixes. Many businesses and other organizations record their telephone calls so that they can prove what was said, train their staff, or monitor performance. This activity may not be considered telephone tapping in some, but not all, jurisdictions because it is done with the knowledge of at least one of the parties to the telephone conversation.

Telephone recordings are governed by federal law and by mainly two types of state laws:

States that currently require that all parties consent to the recording include: California,^[21] Connecticut,^[22] Florida,^[23] Hawaii (in general a one-party state, but requires two-party consent if the recording device is installed in a private place),^[22] Illinois (debated, see next section), Maryland,^[24] Massachusetts^[22] (only "secret" recordings are banned^[25]), Montana (requires notification only),^[26] Nevada,^[27] New Hampshire,^[28] Pennsylvania,^[29] and Washington (however, section 3 of the Washington law states that permission is given if any of the parties announces that they will be recording the call in a reasonable manner if the recording contains that announcement).^[30]

One-party consent states

Other states (and the District of Columbia) not listed above require only that one party consent to the recording.^[20]

Illinois courts have ruled that "eavesdropping" only applies to conversations that the party otherwise would not have been able to hear, thereby effectively making it a one-party consent state.^[31][32] However, some confusion exists^[33] and debate^[34] over the law.

The Michigan Court of Appeals ruled in 1982 that participants in a conversation may record a discussion without getting the permission of other participants.^[35] The ruling stated that eavesdropping only applies to: "a third party not otherwise involved in the conversation being eavesdropped on". This is because the law uses the wording, "the private discourse of others", rather than the wording, "the private discourse of others or with others".^[36] Michigan law is often misinterpreted as requiring the consent of all parties to a conversation.^[37]

The California Supreme Court ruled in 2006 that if a caller in a one-party state records a conversation with someone in California, that one-party state caller is subject to the stricter of the laws and must have consent from all callers (cf. Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95^[38]). However, non-disclosure recordings by one of the parties can legally be made if the other party is threatening kidnapping, extortion, bribery, or other felony violence. Also included is misdemeanor obscenity and threats of injury to persons or property via an electronic communication device (usually a telephone). All threats must be directed towards one's self or family members and not third parties.^[39]

According to the Digital Media Law Project, "New York is a one-party consent state."^[40][41]

Accepted forms of notification recording by a telephone company

The Federal Communications Commission defines accepted forms of notification for telephone recording by telephone companies as:

• Prior verbal (oral) or written notification of all parties to the telephone conversation.
• Verbal (oral) notification before the recording is made. This is the most commonly used type.
• An audible beep tone repeated at regular intervals during the call.

References

External links

• FCC Consumer facts on recording calls
• Privacy Rights Clearinghouse / UCAN
• The Reporters Committee for Freedom of the Press article on telephone recording laws by state
• Federal law 18 U.S.C. 119, Sec. 2511(2)(d)
• Comprehensive Telephone Law Recording Reference
• Guidelines for Recording of Customtomer Telephone Calls