In the USA, due to many states having ‘two party consent laws’ that require notifying someone before recording a conversation, most (all?) sizable corporations will let you know that your call is being recorded before connecting to you a representative of that business.
My question is, if the representative on the other end already knows a copy of the call is already being recorded by the corporation they work for, is it OK for you to record a copy on your end too without notifying the representative that you’re recording too?
I’m an engineer, not a lawyer, but my understanding of it is that it depends on exactly what the company’s notification states and also depends on the exact wording of the law in question. For example, if the company’s notification says “may be recorded” that could be interpreted differently that “all calls are recorded for quality control purposes”. In the former case, the company would know whether or not they are recording the call, but wouldn’t know that you were recording the call. In the latter case, there is an expectation by both parties that the call is being recorded, but again this would depend on the wording of the laws of each state involved.
Some state laws also expect both parties to consent to the recording, in which case the company would of course consent to their own recording but haven’t given consent to your recording.
Even if the message says “all messages are recorded”, if the company knows that their recording equipment is busted or turned off for whatever reason, they would not have an expectation that their words are being recorded.
Without knowing the specific states involved and the exact wording of their message, the general answer would probably be no, you can’t just record it on your own without notifying them.
If the company says this, then literally they are giving you permission. If they say “might be recorded” they are making a probabilistic statement. As vague contracts are generally interpreted against the party who wrote it, I’d say using “may” would give you a good argument that you had permission. However, IANAL.
I’m not a lawyer either, but I’ve seen this come up. What I was told is that it’s illegal to record a conversation if either party has an expectation that the call is private. For a call to a large public entity, I don’t think such an expectation is there, so I think it would be ok for you to record a call to a call center or whatever.
That said I’d check with a lawyer. I will say that when we are going to record a call we also do the whole ‘this call may be recorded for quality assurance purposes’ thingy.
I strongly suspect that this is one of those legal questions that has 50 different answers. The boilerplate statements made by the companies vary, the laws vary, and the court history interpreting those laws varies.
I choose to interpret the statement “This call may be recorded” as giving permission to record, and since they’re the ones framing the oral contract, any ambiguity is resolved in favor of the other party, i.e. me. I can record the call.
It is probably covered by specific legislation, not just a general interpretation of the wording. Telecommunications attracted a lot of legislative attention, and where you are probably makes a huge difference.
Here in Oz we never get a bland “may be recorded”. We get qualified recording messages, usually about training or quality control. You might argue that “this call may be recorded for quality control purposes” also gives you permission to record the call, so long as you are only using the recording for quality control. Quite what quality control is, is another matter. Training purposes is another. That makes things pretty tight. But I suspect they are being clever here, and not giving you blanket permission either.
Given this is a consent issue, I would find it had to consider that “may” could be reasonably interpreted as anything but giving consent. Despite an easy interpretation that it is just a matter of “might be”.
I disagree. Without any context, it is true that the phrase “this call may be recorded” has two possible meanings - either a statement of something the speaker sometimes intends to do, or granting permission to the other person. But in this context, it is completely unambiguous that it means the former, a statement of intent.
The principle that ambiguity is resolved against the party who wrote a contract does not allow you to cherry pick phrases completely out of context and simply manufacture ambiguity.
(And the idea that “may” can only mean granting permission and cannot be synonymous with “might sometimes” is silly prescriptivist nonsense.)
That is why we have lawyers.
I would argue that the context is a telephone call and the legislative framework that the phone call occurs in. Typically that framework requires dual permission to create a recording. So clearly the context is one of seeking permission, as you are also implicitly providing the other end with permission to record by proceeding with the call (or at least proceeding without objecting to recording.)
If the meaning is that the company “might at its discretion” record the call it is less clear that they have sought permission from you to allow recording to proceed. They can’t have it both ways either. Either they sought permission or they didn’t. If they didn’t, and simply informed you of a possibility, they are breaking the law.
Are you saying this based on knowledge of the law? Because it seems quite reasonable to me that the law might allow a recorded verbal statement of intent to record a call prior to the commencement of the recording, allowing the other party to simply hang up if they don’t consent; with implied consent if the other party continues with the call. I have no idea if the law does allow this, I’m not a lawyer.
I also don’t know if one party’s statement of their intent to record a call implies consent for the other party to record. Again, that’s a legal question.
I was expressing an opinion only on the meaning and usage of the English language, disputing the claimed ambiguity of the plain English. The full boilerplate phrase is almost always “this call may be recorded for quality control purposes”. I’m pretty sure that nobody would reasonably construe that to be granting permission to the customer to record the call. Most customers don’t conduct quality control on their own telephone conversations.
No, the opposite
I’m no lawyer either. As was once observed, one lawyers job is to say that the law means one thing, and the other lawyers job is to say that that interpretation is not quite correct and it is his client that is in the right.
About all I would say is that until you get some case law nobody really knows. I’m just spit-balling, same as everyone else.
I believe that each caller is bound by the laws of their own state. If the callers are in different states where one is one-party and the other is two-party, the one-party person can freely record while the two-party person has to announce it. If you are in a two-party state, I don’t think that the corporation saying they are recording the call gives you any explicit permission to record it. I think you still have to announce you are recording if you are in a two-party state.
For all intents and purposes, 38 states (and DC) require only one-party consent. There’s various exceptions, and things get complicated when calling across state lines, but this discussion also raises some interesting questions about it. If the intent of the company was NOT to grant recording permission to the caller, why would they use the ambiguous “this call may be recorded…” instead of something like “we reserve the right to record…” or “we may record this call…”? To me it seems like the companies are forced to acknowledge that the caller has the right to record in most states, so maybe it’s just easier to “grant” blanket permission rather than trying to track calls state-by-state.
I interpret the “may” as meaning “this call might be recorded by us” rather than “we grant permission to the caller to record it if they wish”. I don’t think it’s the latter because the corporation is recording it and the latter interpretation doesn’t imply that they are recording it. They mean to say that they might record the call for their own quality control purposes. They aren’t granting the caller permission to record it for quality control purposes.
I will just say, not as a legal answer, but when I was a customer service rep, we were instructed to NOT allow the customer to record us if they said they were going to.
As a resident of the state of Georgia, I would then tell you that I agree to not record you, all while recording shit out of the entire conversation, if I thought there might be something that needed saving for posterity. I’d do the same in any other one-party consent state as well.
I think so. The fact that the employee knows he may be recorded and that you are being recorded, and by continuing the call you acknowledge the both of you are being recorded. Typically, I hear that if you wish not to be recorded, then tell the representative.
Also, if it does say that, I tell the person that I am recording them too, for quality purposes like the recording told me. Therefore, both sides have been notified.
I was interested to chase up what the actual law is here in Oz. And of course it is a mess.
Phone calls are covered by federal legislation, and you cannot record anything off the phone system until you have the agreement of the other party. This covers wire taps and like as well. Any communication that at any time runs over the telecoms infrastructure is covered. A purely radio based conversation isn’t, but a hybrid is.
However, once the audio is off the phone systems, that law don’t apply anymore, and we revert to state based laws about recording of conversations in general. So if you record a conversation from a speaker phone you are under state control. (Or even recording with your phone seems OK. Just not off the phone wires.) States differ. Many just require notification. Once you know it may be recorded it is up to you to terminate or not. However notification must occur prior to the recording starting. Some allow recording if the other part doesn’t know, so long as the recording isn’t shared with anyone (other than the person recorded) and most provide exemptions for protection of legal rights. So here, I suspect, that if you record a conversation with a company you are having a legal wrangle with, you don’t need to get their permission or even notify them, and could use it as evidence. But you sure as heck can’t release it to the media. Safety critical uses are also exempt. Emergency services record all calls, as do many sensitive entities.
Here, the recorded message “may be recorded…” is notification that that a recording may occur. It is neither giving or seeking permission, as permission is not needed. So it is unidirectional. If you want to make an unencumbered recording you have to tell them that you are going to. They can proceed with the call or not at their choice.
I record everything. It’s my policy. I don’t care what the law says. Embarrassing things can get released by unknown parties. Who recorded it? I don’t know. Not me!
It`s a judo skill. Someone claims they didn’t say X then you play a recording of them saying X. They will fold.
