Hands up if you've listened to the prerecorded message on just about any customer service number telling you the call will be recorded, and wondered if it's really legal to record a phone conversation.
Even if you haven't wondered it before, you're probably wondering it now that we mentioned it. Unfortunately the answer isn't a clear yes or no. It depends on a couple of factors.
The legality of recording conversations is regulated by federal and state wiretapping laws. But not all states have the same regulations, and deciding which law applies can get complicated.
While wiretapping laws vary, they fall into two basic categories. There are laws that only require the consent of one party, and those that require all parties to consent.
Federal law and the laws in most states require only one party's consent. That means only one person in the conversation has to consent to allow recording. The other party or parties don't have to know they're being recorded.
But a small number of states still require all participants' consent, which means every member of the conversation has to know they're being recorded and must agree to it.
When it comes to consent, the law doesn't necessarily require parties to the conversation to say "I agree." Staying on the line after you know the conversation is being recorded is generally enough.
That's where the prerecorded messages come into play. They ensure that you know the recording is happening, and by staying on hold you provide consent.
The alternative to consent is getting a warrant to tap a phone line. But that only applies to law enforcement.
But a big problem when it comes to recording phone conversations is knowing which law applies. It depends on which state you are in, and which state(s) the other parties are in during the call.
If you're both in the same state, then you can assume that your state's laws apply. But if any person is in a different state, the laws in either state, or even federal law, may apply. To protect yourself legally, it's a good idea to inform everyone that the conversation is being recorded.
That's actually a good rule of thumb anytime you're hoping to record a phone conversation. Unless you're working for the government, give notice and ask before you hit "record."
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