Important not-a-lawyer advice: recording phone calls without the other party's consent is illegal in wide swathes of the U.S., but keeping copies of letters is legal everywhere.

Question: When the party states that "this call may be recorded for quality or training purposes", does that give you reciprocal permission to record the call or do you have to explicitly ask for it?

Any lawyers with opinion on this?

IANAL, but if you live in a two-party (all-party?) consent state, its only illegal if you don't tell them. You can do exactly what they do: prefix your call with "this call is being recorded for my records".

Remember, your goal isn't to secretly pull out a recording that proves they're lying while in court. You don't want to go to court at all. To that end, you want them to know you're keeping a paper (or virtual paper) trail. So tell them.

The problem is, what if they hang up? They have an unfair advantage here since they can refuse to consent to your recording, but you can't do the same thing. (I mean, you can, but then they're holding whatever you need to get done hostage.)

Then you make a note of it, and send them a letter (certified, receipt requested).

(a) Are they obligated to handle anything that they would handle over the phone via a letter too? I don't feel like many companies would be willing to do this.

(b) What if they just do all the typical customer service BS on the phone over snail mail? People spend hours or even days with a lot of back-and-forth to get non-routine stuff sorted out... if you do that over snail mail it could easily take many months to do things right. Not exactly practical, especially when you have a deadline coming up and it passes during this back-and-forth mailing.

I guess the answer is in many ways contained in the blog post.

Is there any legal regulation or contract compelling them to respond to you? If so, use that as leverage. If there is not, you may not be able to compel them to do what you want.

I would love to know the answer to this question.

Alternatively, I wonder something else: When they say "this call may be recorded" could you legally interpret "may" to mean as giving you permission, rather than as "might be recorded"? It would seem like they might have a hard time arguing "this call may be recorded for quality purposes" doesn't imply that you may (= can) record the call for quality purposes.

Follow up question:

What if I said "I am recording this call" while I am in an Automatic Voice Response system waiting for an human to arrive on the line and talk to me?

As far as I am concerned, human representative or the automated voice response system, both represent the company that I am interacting with. It's not my fault that the voice response system that the company used to talk to me (to answer my questions, or just make me wait) can't understand that I am going to record the call and act appropriately. The business is perfectly fine with using the automated system to take critical actions, then it should be fine with me telling it I will be recording the call, not my fault that their automated system failed to recognize that.

What do you think?

Well, when I used to work in a call center we were instructed to just keep repeating "I do not consent to your recording this call" or something to that effect until they said they stopped or they hung up.

Intent and reasonable expectations will come in to play.

Unlike the movies, judges hate word games and attempts to skirt the laws. As in, they really frown on it.

This is not legal advice and I'm not your lawyer. Consult a qualified legal representative in the appropriate jurisdiction.

Truth. I once happened to be in a hearing where the judge got the idea that the plaintiff's attorney might be jerking him around. It was an impressive display of wrath. Along with crocodiles and bears, federal judges are now on my "definitely do not fuck with" list.

Playing semantics games is almost guaranteed to piss off the judge. Pissed off judges are not nice.

It's a very long-winded story, so I will try for the short version. Courts default to being open to the public. You can go down and watch them. Chances are, you can even make use of a law library.

Anyhow, this is sort of a hobby of mine. I know, I'm a strange person - but I love watching the court. Like I said, it's a long story.

I think my favorite was a guy who was in district court and argued with the judge about the definition of marijuana and the word possession. Now, the judge was pretty polite and told them that they were trying to give them a very small fine.

The kid persisted and had no idea about procedure. I mean, he could have argued those things but there's a procedure. Procedure is very, very important to judges. Seriously, they love proper procedure so much that they will even tell you what you need to do. She tried to explain this to the kid.

But no, he persisted and tried to fake his way into appearing to be a legal scholar. Again, this was district court.

Suffice to say, he kept going before finally admitting guilt and she gave him the maximum fine and just until the end of the day to pay that fine. At which point he decided it was time to double down and refuse to recognize the court - though not as one of those sovereign citizen things.

I'm not sure what the end result was, but he was taken into custody by the court officers. The rest of the day went quite smoothly.

The best part of this story? He had the chance to speak with the DA prior to this and the State provides an attorney of the day. He took advantage of neither one.

It boggles my mind when people think they can out-talk people trained to parse semantics.

Perhaps answering every notice of recording with "me too" is enough?

Wow! this is a good one. I would love to hear a lawyer's take on this to see if this is notice enough. Seems like it though :)

If I tell someone "my nose may be touched" then I'm allowing them to touch my nose.

If I tell someone "this call may be recorded", then surely I'm giving them permission to record the call. Their ability to detect my lies seems to be a reasonable "quality" purpose.

You would be intentionally conflating two different definitions of the homograph "may" (i.e. permission "you are allowed to X" versus possibility "X might happen").

You could argue that "any reasonable person" would have interpreted the "may" in that statement as giving you permission to record the call for training purposes (as opposed to letting you know that your call might be recorded for training purposes), but I wouldn't want to be in you shoes when you try.

Just tell them that you're recording the call too, and sidestep the issue entirely.

This again varies between jurisdictions, as far as I'm aware.

As a maverick not a lawyer, it's worth noting that what this means in practice is that evidence of a crime obtained by illegally recording a telephone conversation may not be admissible in court. I say may not be because a judge could decide to allow the evidence if the alleged crime is sufficiently serious.

It's extraordinarily unlikely a criminal or civil case will be brought against you because you revealed to a company that you recorded a support call to them, especially if the content of those calls reveals impropriety on their behalf.

What probably would be a problem is if you recorded a telephone conversation with the intent to, or actually causing, harm.

At least, that's my lay understanding of how things might go.

Fortunately, all calls to/from the bank (or at least my bank) begin with the message "We inform you that this call may be recorded."

How do you record the consent itself? Or is it going to be a case of he said/she said? I'd assume you'd need proof that you had asked for consent prior.

The pedantic way (and maybe required under some theoretic draconian regulatory environment):

- no active recording -

Mr. Wants-to-record: "May I record this phone call?"

Ms. Recordee: "Ok"

- start recording -

Mr. Wants-to-record: "I am now recording based on the permission you just gave prior to starting recording. Are we in agreement?"

Ms. Recordee: "Yep"

----

FWIW, I've had conversations pretty close to that when doing mortgage applications over the phone.

> This call may be recorded for quality and training purposes.

They never ask me to say I'm OK with it.

Because you can hang up if you aren't. Additionally, I imagine upon reaching an individual immediately stating you do not consent to being recorded will likely trigger the appropriate outcome.

Depends on the seriousness of the call.

If you're entering into an actual contract verbally (e.g. applying for insurance or a mortgage over the phone), they'll typically go out of their way to ask if you're okay with the recording. They don't want even the slightest admissablility issue, and they want you to know you're giving a binding verbal signature.

If you're just talking to a low-level customer support rep, the stakes are a lot lower.

If you not okay then you simply hang up, no?

> How do you record the consent itself?

I suppose using a call recording device for a fixed line telephone, or an app for a smartphone.

> I'd assume you'd need proof that you had asked for consent prior.

My point is: even if you neglect to ask for consent, no company is going to sic their lawyers on you if you play back to them a call recording that proves they lied and therefore failed to meet their contractual obligations.

Edit: Oh, sorry, I see what you mean now about recording consent. You start by recording the call by default, if the other party requests the call not be recorded you cease recording. It would probably be okay to retain that portion of the recording.

I wonder if this law still makes sense. I feel it could be altered to say that recording someone without them even knowing you are listening should be illegal, but I don't see why it should be illegal to record a consenting conversation between two people.

Btw, does it apply to video recording as well?

Generally the laws on video recording are based on where the camera operator is standing while filming. If you have a lawful right to be where you are, it's probably ok to make a video. But take a look at the facts in Shulman v. Group W Production, Inc. (1998) 18 Cal. 4th 200, where the camera crew was lawfully present but intruded on a private encounter. Very much depends on context, at least in California.

Are you automatically covered if they give the standard boilerplate that they are recording the call?

That's a great question, this might be of interest to you:

https://law.stackexchange.com/questions/5614/if-other-party-...

The top answer states:

>Once AT&T, or anyone else for that matter, states that the communication is being recorded, it is no longer considered a confidential communication requiring the consent of all parties in order for any party to record it.

IANAL either, but I think either of informing the party upfront or soft beeps in the background are acceptable.

I've been informed by the other side many times that the call was recorded, and never once heard soft beeps. I think the announcement must be enough.

EDIT: IANAL

Yes. I believe either is sufficient, not that both are required

Yes, check your states laws. Some states are two-party consent, but a good number are one-party consent states. And in a one-party consent state you recording yourself is legal without the other parties knowledge because you gave your consent to make the recording of yourself.

Due to getting a new cell phone number that apparently once belonged to a deadbeat I know nothing about, I got a large number of debt collector calls. I wish I had a good way to get their address and record who is calling.

The only problem is that they all ask for <name>, give me no information about themselves, and hang up right away. I blocked a lot of them, but there's no good way to make that go away.

The federal Telephone Consumer Protection Act (47 USC 227) says that each of these calls is worth $500 minimum in statutory damages -- and may be trebled to $1500 per call if shown to be willful. Assuming you live in the US, this is a great case and you should keep track of the calls.

Problem is that they never identify themselves, they just say "we're looking for [xyz]" and hang up when I say I'm not them. I can't keep them on the call and the caller ID is faked to be some random local number.

It is legal in, for example, Sweden: https://en.m.wikipedia.org/wiki/Telephone_recording_laws

This is correct, if anyone is considering this then definitely look into your state laws before proceeding.

And here I am, fascinated, with all the technology available today, paper and pen is the gold standard.

How do you do this from a technical perspective? I've tried to look for solutions to do this in the past but never found any good options.

From the F-Droid (https://f-droid.org/) store:

Call Recorder: https://f-droid.org/packages/com.github.axet.callrecorder/

Recording phone calls without the other party's consent is super illegal, as in criminally illegal, in all-party consent states [1]. Needless to say, one gives up leverage when one commits a crime.

[1] https://en.m.wikipedia.org/wiki/Telephone_recording_laws

> super illegal

Trafficking large quantities of drugs, aggravated assault, serious sexual assault, murder. These are super illegal. No one is going to prison for recording a support call that reveals impropriety on behalf of the company providing support.

Many people here seem obsessed with laws, as if they possess value and worth in and of themselves, when really they are a very high latency side channel of society and power. The steps that would necessarily have to occur in order for a case to be brought against you because you illegally recorded a support call that revealed impropriety of the other party are fairly preposterous.

Anyway, all of this can be avoided by simply stating something along the lines of "I am recording this call for my records. Please advise me now, or at any stage, if you wish the recording to cease."

The illegality of acts like those I mentioned above can't obviated by stating your intention to commit them and offering an opportunity for the other party to decline to participate. In some jurisdictions it is a form of assault to seriously state your intention to harm another.

> The steps that would necessarily have to occur in order for a case to be brought against you because you illegally recorded a support call that revealed impropriety of the other party are fairly preposterous

It's as simple as "we will settle your qualms against our business in exchange for us not pursuing your wilful violation of criminal law in court". If you say no, a cheap state court filing would be routine for a business but hell for an individual.

TL; DR If you want to record a call, get permission.

Source: I helped a friend who had a call illegally recorded Cc our local AG on a letter protesting the matter. The AG requested information from the offender; they settled with damages for everyone involved's time and expenses. Running your life assuming nobody will hold you accountable works until it fails. When it fails you've handed the other party a ton of leverage.

My understand of how criminal allegations work, at least in Australia, and I believe the other Western democracies aren't too dissimilar, is that: 1. the compfny would have to report the matter to police, 2. the police would have to believe there is reasonable grounds to lay charges, 3. the police / public prosecutor would have to believe that a. the case is worth persuing and b. there is sufficient evidence for a guilty verdict if the defendant pleaded not guilty and the case went to a hearing before a judge.

I'll admit a company could threaten legal action, and this would usually be sufficient for the lay person to back down.

I agree with you in that running your life as though no one will hold you accountable works until it fails. I've had a close call with a major indictable, the charges against me ended up being dropped nolle prosequi because the police fumbled the evidence. And from my perspective lots of companies and law enforcement are riding roughshod over their obligations to us as people, so in a sense fuck them.

It's worth noting this approach probably isn't worth the hassle... But it does seem to be a personality trait I'm evidently not interested in changing, otherwise I probably would have by now.

This comment glosses over the fact that most US states are one-party consent states not requiring notifying the other party that a telephone call is being recorded.

From your source:

> 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, but is the only state without a "public location" exception),[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]

This is not accurate. California makes it illegal to record "confidential" communications, which is sometimes called "two party consent," but that shouldn't be interpreted to mean that affirmative consent is required. Notice that the call may be recorded defeats any presumption of confidentiality and makes it permissible for any party to record the conversation. (I am a lawyer and have litigated these cases. But I'm not your lawyer and this is not legal advice.)

I'm not seeing the claims that you are refuting about California in the quoted text. My point was just to illustrate that most states are not two party consent.

And that is why you state you are recording the call.

Is it legal if another side is recording (as they usually do)?