While on a call, you might find it useful to record that call for a number of reasons: to share with both parties post call as a means of documenting, to make sure you get an order or request documented correctly, to help your team stay in-the-loop. Whether your reason, it's important to understand the state specific regulations.
Let's start with the most asked question: is it legal to record a call?
Yes! You can legally record phone calls. And while in many states, it is not required to disclose that you are recording, it’s considered a best practice to let people know the call is being recorded.
Here are some common ways to say this:
• This call is being recorded for quality assurance
• This call may be recorded for training purposes
• This call is being recorded as part of our note taking purposes. Would you like a copy after the call?
• We record calls for better documentation, is that ok with you?
• This call is being recorded because COVID isolation has given me the memory of a bee (fun fact: bees' short term memory last 2.5 seconds!)
Just kidding on that last one, but as you might have felt reading the above, you've likely heard some of these disclosures before.
So let's get into a few details around recording laws in the US and Canada
Federal law (18 U.S.C. § 2511) requires one-party consent, which means you can record a phone call or conversation so long as you are a party to the conversation. If you are not a party to the conversation, you can record a conversation or phone call only if at least one party consents and has full knowledge that the communication will be recorded. The statute also prohibits recording conversations with criminal or tortious intent.
Most states have enacted laws that are similar to the federal statute, meaning that they generally require one-party consent.
However, two-party consent is required for eleven states. What this means is that everyone involved in the call must explicitly agree to be recorded. The states that require two-party consent are:
- New Hampshire
Each state has its own laws regarding phone call recordings. Consult an attorney if you need guidance on laws for each state. In general, if you want to record calls with people located in more than one state, just play it safe and get the consent of everyone involved.
Cross state calls
Are you making a call from New York (one-party consent) to someone in Massachusetts (two-party consent)? Generally speaking, laws favor the state where the call originated from. In this case, only one-party consent is needed because the call is coming from New York. If the call originated in Massachusetts, two-party consent would be needed.
This is not always the case though, so we recommend you either seek legal guidance, or get consent from all parties on each call you record.
Penalty for violating recording laws
If you violate phone call recording laws, you could be charged with a crime, go through a lawsuit, or even both. It’s possible to be charged with felonies or misdemeanors too. Many states have strict laws that could have you facing jail time if you’re found to be in violation of the law.
Work with attorneys to make sure you’re following federal and state consent laws. For example, if your business needs to record calls on a daily basis for customer service, attorneys can help you navigate the laws to make sure you’re compliant.
Call recording laws in Canada
Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) requires “all-parties consent” when recording phone calls. This means everyone on the call needs to consent to being recorded.
How does all-parties consent work? If you want to record a call in Canada, you must do the following:
• Let everyone on the call know that you intend to record the call
• Tell everyone what the call recording will be used for
• Inform people that the call can only be recorded if each person consents
• Get verbal consent
You can learn more about the laws for recording calls in Canada by viewing the Privacy Commissioner’s Guidelines for Recording Customer Calls.
Practical tips for recording calls or conversations
Check the law of your state before you record a phone call or conversation. As outlined above, recording phone calls and conversations without consent may expose you to criminal and civil liability, so you will want to be aware of what is permissible before taking action. We recommend doing more research outside of simply reading this help article.
Get consent to record from all necessary parties. In many states, the consent of one party is sufficient to make recording lawful. But the legal situation becomes more uncertain when parties to a phone call are located in different states. To avoid legal problems, it is best to review the law in all states where parties to the call are located. If any party is in a state that requires the consent of all parties, it is best to get the consent of all parties to the call (regardless of their state) before recording.
Get consent on tape. The best way to document that you have obtained consent is to record the consent along with the phone call or conversation. As a practical matter, this will require (1) notifying the person you intend to record of your intent to record; (2) getting consent off-the-record; (3) starting the recording; and then (4) asking the person to confirm on-the-record that he or she consents to the recording.
Don't be secretive. In some states, you can violate the law by recording secretly, even in a public place. Whenever possible, make it clear to those around you that you are recording. Don't hide your camera or tape recorder. Being upfront puts people on notice that they are being recorded, affords them an opportunity to object, and undercuts any argument that you are acting secretly.
There are many companies that record phone calls for records, training, quality assurance, documentation, and more. We highly recommend if you are planning to use this feature, to practice all party consent as it is the clearest and safest way to help everyone stay informed.
If you'd like more guidance on regulation and laws around phone recording, we recommend reaching out to your attorney.
If you have questions on how the feature works, or want to request additional features? Let us know!
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