Privacy Laws/Regulations Requirements of Notice and for Electronic Recording of Telephone Conversations

The information contained in the present document is public domain general information related to the execution of telephone conversations electronic recordings.

The content of the present document cannot be in any way interpreted as dispensing of legal advice by Flagman Telecom, Inc. nor does the latter profess the accuracy of the information provided. If any kind of questions concerning legal implications of the information herein, taping related issues, application of the above issues in particular states and/or the legal ramifications stemming from the use of the service, attorney should be contacted.

Flagman Telecom, Inc. does not bear any legal responsibility for any possible misinterpretation, lack of understanding or lack of knowledge concerning the use of electronic recordings and/or the use of its services by a purchaser or other party. You bear sole responsibility for equipping yourself with the proper sufficient knowledge for legal use of the services at hand.

The use of electronic, mechanical or other device recordings is regulated by federal and state statutes. The illegal operation of such equipment can give rise not only to a civil suit by the "injured" party, but also result in criminal prosecution. Accordingly, it is critical that you know the statutes that apply and what the rights and responsibilities.

Laws regulating call recording may vary from state to state. As per the provisions of the said laws obtaining of either single party (the caller needs to provide consent) or multi-party consent (all parties on the call need to provide consent) is mandatory before a call can be recorded. If you are calling from or to a multi-party consent state, then all parties on the phone are required to give the consent for call recording. If you are calling from and to a single party consent state, then no additional consent is required. The following links are of informative nature solely, are provided exclusively as a guide on federal and state call recording laws, however this information may be not up-to-date for the moment you apply to it cannot be in any way considered as the ultimate source on the subject.

1. Consent

2. Federal and State Laws

3. State Statutes

4. Business Telephone Exception

5. Evidentiary Issues

6. Recording Telephone Calls with Parties in Different Jurisdictions

7. The Role of FCC

8. References

1. Consent

As per the provisions of US Federal laws for recording a telephone conversation only a single party consent is required and mandatory. Notwithstanding the statement above, certain states have laws in force requiring consent of multiple parties to a call. Federal and many state laws do not grant protection for recording of calls for criminal and/or tortuous purposes.

2. Federal and State Legislation

Federal Statute: Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C.§§ 2510-2522.

The general prohibition against call monitoring has two exceptions:

1. of At least one party to the call consents

2. Ordinary course of business exception

The ordinary course of business exception is applicable where the call recording concerns the legitimate operation of and during "ordinary course of business".

http://uscode.house.gov/download/pls/18C119.txt

As per the provisions of the Federal Communications Commission (FCC) (48 C.F.R. Sec. 64.501) at least one of the following measures must be taken when an interstate phone call is recorded:

1. Both parties give consent to the recording; or

2. The recording party must verbally give notification prior to recording; or

3. There must be a regular electronic beep tone in the course of recording.

3. State Statutes

U.S. federal law only requires one-party consent; however numerous states have varying statutes. Some states require all parties to give their consent or at least must be notified that the call is to be recorded (with necessary optout option). A 1950s Supreme Court case stated that the federal law does not supersede state authority/statutes unless the call or the tap crosses state lines - for that reason every state has their own laws in force.

Single Party Notification Requiring States

  • Alabama
  • Louisiana
  • Oregon
  • Alaska
  • Maine
  • Ohio
  • Arizona
  • Minnesota
  • Rhode Island
  • Arkansas
  • Mississippi
  • South Carolina
  • Colorado
  • Missouri
  • South Dakota
  • District of Columbia
  • Nebraska
  • Tennessee
  • Georgia
  • New Jersey
  • Vermont
  • Hawaii
  • New Mexico
  • Virginia
  • Idaho
  • New York
  • West Virginia
  • Illinois
  • North Carolina
  • Wisconsin
  • Indiana
  • North Dakota
  • Wyoming
  • Iowa
  • Oklahoma
  • Kansas
  • Texas
  • Kentucky
  • Utah

States Requiring Two (or Multi-) Party Notification

  • California
  • Massachusetts
  • New Hampshire
  • Connecticut
  • Maryland
  • Nevada

Single Party Notification Requiring States

  • Delaware
  • Michigan
  • Pennsylvania
  • Florida
  • Montana
  • Washington

Individual State laws are published at http://www.rcfp.org/taping/taping.html

4. Exception of “Business telephone”

The "business telephone" exception generally provides opportunity for monitoring of calls and taping over an extension phone which is both provided to a subscriber in the ordinary process of a telephone company's business, as well as is being used by the said subscriber in the ordinary course of its own business. The provision at hand generally grants businesses rights of monitoring the conversations of their employees, including, but not limited to personal conversations.

Penalties: Criminal penalties are envisaged by the federal statutes for illegal interception of telephone conversations, including up to five years' imprisonment or a maximum of $10,000 in fines. Also, civil remedies are allowed, by which private parties may recover actual and punitive damages, in addition fees and costs.

5. Evidentiary Issues

Surreptitious recordings often are made by individuals and businesses for the purposes of future use as evidence.

Such recordings are subject to significant legal barriers for using as such. If made in violation of federal and/or state law, the recordings will be inadmissible with maximum certainty. Also, even if recording is lawful, the tapes the hearsay rule may not apply to the tapes and the tapes will not, in most jurisdictions, be usable for impeachment.

Anyone considering an evidentiary use of surreptitious recordings should consult with an attorney before making such recording.

6. Recording Telephone Calls with Parties in Different Jurisdictions

When the conversation is between parties who are in different states Federal law may apply, although it is not settled whether a court in a given case will state that federal law "pre-empts" state law, but either state may enforce its own laws. Therefore, it is better to take precautionary measures in the course recording an interstate telephone call.

7. The Role of FCC

If the consumers suspect their telephone conversations were unlawfully recorded The FCC’s authority is generally limited to ensuring that telephone companies enforce their tariff provisions in relation to recording of telephone conversations. The sole penalty that can be enforced by the local carrier is telephone service revocation. (In the Matter of Use of Electronic recordings in Connection with Telephone Service.)

The FCC by requires notification before an electronic recording is used to record interstate or foreign telephone conversations in such way protecting the privacy of telephone conversations. These types of conversations may be recorded only provided that the use of electronic recording is:

Verbal or written consent of all parties to the telephone conversation is given in prior; or

Verbal notification which is recorded at the beginning is given in prior, and as part of the call, by the recording party; or

Accompanied by an automatic tone warning device, also called a beep tone, which automatically produces a distinct signal repeated at regular intervals during the telephone conversation in the course of the electronic recording.

NO electronic recording can shall be used unless it can be physically connected to and disconnected from the telephone line and/or switched on and off.

Telephone common carriers fall under the above FCC rule requirements. Similar requirements apply towards consumers through the carriers' tariffs.

8. References herein

Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C. §§ 2510- 2522 http://uscode.house.gov/download/pls/18C119.txt

The Reporters Committee for Freedom of the Press: A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C. http://www.rcfp.org/taping/

FCC Consumer Information Bureau http://www.fcc.gov/cib/

"Recording Telephone Conversations" http://www.fcc.gov/cgb/consumerfacts/recordcalls.pdf

"Interception and Divulgence of Radio Communications" http://www.fcc.gov/cgb/consumerfacts/interception.pdf

U.S. Department of Justice http://www.usdoj.gov/

USA Bulletin, September 1997 Vol. 45, No. 5, 6. Electronic Investigative Techniques I, II:

http://www.usdoj.gov/usao/eousa/foia_reading_room/usab4505.pdf

http://www.usdoj.gov/usao/eousa/foia_reading_room/usab4506.pdf

Telephone Tape Recording Law. Ralph Thomas. National Association Of Investigative Specialists http://www.pimall.com/nais/n.tel.tape.law.html