People sometimes ask me whether they can, or should, record telephone conversations, with employees, competitors, bosses, witnesses, and others. Not long ago, I faced a variation of this issue when I was conducting an investigation of certain discrimination claims for a corporate client. A witness I was interviewing refused to talk with me as long as I had my iPhone on the table, for fear that I might be recording her. (I’m a Boomer. I wouldn’t know how to record someone on an iPhone or any other device that doesn’t involve tape reels and spools, and even then.) It all reminds me of the Rolling Stones song, “Fingerprint File.”
I don’t claim to be a tech expert (or even a tech amateur), but my understanding is that the recording issue has become even more prevalent with the development of voice over Internet protocol service (“VOIP”), which uses the Internet to make telephone calls. One of the featured “benefits” of VOIP is the ease of digitally recording telephone calls.
So here’s the scoop on the legality of recording telephone calls. Federal law, and the laws in 38 states (including New York and New Jersey), generally allow you to record a telephone conversation if one party to the conversation (in other words, you) has given permission to be recorded. The New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-3, for example, makes it illegal to record telephone conversations without the other person’s consent. Recording is permitted and legal, though, where the person recording the conversation is not acting on behalf of the state and is a party to the telephone call. There are exceptions to this rule, for example where children are concerned.
Some states (Pennsylvania, Massachusetts, Florida, New Hampshire, Illinois, Connecticut, Michigan, Maryland, Washington, Montana, California and Nevada) apply a two-party consent law. This requires that all parties involved in the recording must consent to the recording. (Note: If you’re calling over state lines, there may be a question as to which state’s law applies. Consult your attorney.)
Now here’s a recent issue from California. Assume that you’re talking to and recording someone in a two-party state, and the other person has given you permission to record a previous cal. Do you have to get permission to record when you call again?
The Court dismissed Maghen’s complaint, noting that “consent is a complete defense.” The Court stated: “A warning at the outset of the call is not required to comply with [applicable law], if consent to a recording already has been given prior to the call… Any expectation that the call would not be recorded because the call was transferred to a different Quicken Loans employee is unreasonable.” So, common sense prevailed.
Having considered what’s legal and what’s illegal, now let’s think about practicalities. First, a lot of people don’t like to send e-mails because they don’t like to leave a trail. They’d rather talk on the phone. (I once had a client tell me that the “E” in “e-mail” stands for “evidence.”) But, to state the obvious, don’t assume that just because you’re “only” talking on the phone there’s no record of what you’re saying, especially in this world of VOIP. In negotiations or important discussions of any kind, you have to assume that you’re being recorded. Don’t say things that you wouldn’t want to see on the front page of the New York Post. (Ask Alec Baldwin about that.)
On the other hand, if you’re the one recording telephone conversations, what might the repercussions be? Well, if you’re the kind of employer or business partner who records conversations, that might lead to a reputation you don’t want. Also, how would a jury look at you for surreptitiously recording conversations? Maybe not too favorably. So, just because you can do something, doesn’t necessarily mean you should. Examine your reasons.
- Gene Killian