This is a completely hypothetical question here … I’m currently on hold, and it came to me listening to the ubiquitous “for quality assurance and training purposes, this call may be recorded.”
As I understand it, without the disclaimer they could not legally record the call without both party’s permission. The operator’s consent is part of working there, and let’s assume that this is the law in at least one jurisdiction, and the company is either required or covering their butt.
By hanging on after the recording, you are giving your consent. But consent to what? Is the company barred from using the recording for any other purpose other than “quality assurance and training?” Could they, for example, use it to impeach my later testimony (e.g., I actually was told that free shipping did not apply to giraffes)?
As for jurisdiction, assume no motions to dismiss were filed, so all parties tacitly consented to whatever jurisdiction (even Theoreticalland) you wish. Also assume a reasonable person standard for what “quality assurance and training” is, and any motions attempting to broaden its scope beyond direct, internal monitoring and improvement of customer service staff will be denied.
IANAL but I know for a fact that recordings of calls at various call centers at which I’ve worked have been used in legal actions initiated both by the call center and by the caller. In one instance I was a trainer and someone I washed out of training alleged racial discrimination when he claimed unemployment. He asserted that something was said in a phone conversation which, as it happened, he made on a recorded line with the disclaimer on it. This is in Wisconsin.
The federal statute only requires one party to consent. States vary on the issue. Those that require two party consent http://www.rcfp.org/taping/quick.html generally require consent to the recording or listening–not to the use of the recording.
I’m unaware of any cases holding that the reason given for the recording limits the consent, but I don’t have time to check right now.
I see. In my original draft, I deleted a reference to the Monica debacle, as I thought it would perhaps derail the GQ nature of the thread. But I seem to recall talk of problems with the original recording, either her “friend” facing possible action or the tape’s use being limited. In that situation, there was only one party’s consent. If they (the company’s) don’t have to worry about getting my consent (because their operator certainly consents), why bother with the recording in the first place?
Something to consider, they can legally record you all they want to, even if you think you are on hold there are systems that monitor your side of the recording to catch people talking to people around them. Can they use this information as evidence in court is a whole different matter.
Still a business having a recording of you talking to your friend when you thought you were on hold saying “Hahaha, dumb mofo’s are falling for it, were gonna get several months of free service/widgets/atomic wedgies/whatever even though it was our fault.”
They then come back on the line and state…“Sorry, I checked with my supervisor and we no longer offer that option, you can pay the blah blah blah…” because they now know you are jerking them around. Since businesses are not required to take you as a customer <in most cases> they can do pretty much whatever they want. If you are going to cost them more money than you are worth…ooops, how did we get disconnected, another 30 min in the tree for ya.
Linda Tripp recorded those calls in Maryland, which is one of the 12* states that require all parties to consent.
They give the warning for a few reasons, one of which is that they want to avoid civil invasion of privacy claims. Another is that you could be calling from one of the 12 states that require your consent, which makes things more complicated.
Actually she’d have been ok in Michigan because the Michigan courts have held that only “eavesdropping” requires consent, and you can’t eavesdrop on yourself.
