Legal ways of getting around a law

[Critical1]

I have seen this on either tv or a movie kinda recently (cant remember where) the scenario is this
person A is in a state where both parties must be informed if the conversation is going to be recorded, and they want to record person B without their knowledge so…
while talking with person B they initiate a call with some one from a state where only one person (or none) need to be aware of the conversation being recorded and the person from out of state records the conversation from there.

is this seriously legal? I can understand the answer being yes given that the law tends to lag way the hell behind technology but it does seem kinda sketchy.

[Arnold_Winkelried]

You mean, person A initiates a three-way call, with B on the phone, and tells B about the three-way call (“C will be joining us on this call now”) ?

[Giles]

Then person C has broken the law in the state where persons A and B are located. You do not have to be physically located in a state in order to break that state’s laws. (However, there may be practical problems in finding, arresting and extraditing the person.)

[Critical1]

@Arnold_Winkelried

You mean, person A initiates a three-way call, with B on the phone, and tells B about the three-way call (“C will be joining us on this call now”) ?

no, I mean A makes the call and leaves the phone where it will pick up the conversation while C then records from out of state.

@Giles

Then person C has broken the law in the state where persons A and B are located. You do not have to be physically located in a state in order to break that state’s laws. (However, there may be practical problems in finding, arresting and extraditing the person.)

I kinda wondered if that would be the case. the weird part for me (that I left out of the op, oops) was that this recording was then legal for person A to use against B…that was probably kinda important to the whole thing

[Quercus]

@Giles

Then person C has broken the law in the state where persons A and B are located. You do not have to be physically located in a state in order to break that state’s laws. (However, there may be practical problems in finding, arresting and extraditing the person.)

Additionally, courts in the state where A and B are might not look very favorably on using the illegally recorded conversation as evidence. So A may not end up having anything worthwhile from the exercise.

[Chronos]

Let’s break this down into its pieces: What if A is in a state that requires both parties to be informed, but C is in a state where notification isn’t needed, and A calls C directly (or vice-versa), with no third parties?

Alternately, what if the call is made over the Internet, and routed through another state?

[Duckster]

FCC’s Rules Regarding Telephone Company Recording of Interstate or International Wireline Telephone Conversations

           The FCC protects the privacy of telephone                  conversations by requiring notification before a recording                  device is used to record interstate (between different states)                  or international wireline calls. Interstate or international                  wireline conversations may not be recorded unless the use of the                  recording device is:

[ul]
[li] preceded by verbal or written consent of all parties to the telephone conversation; or[/li][li] preceded by verbal notification that is recorded at the beginning, and as part of the call, by the recording party; or[/li][li] accompanied by an automatic tone warning device, sometimes called a “beep tone,” that automatically produces a distinct signal that is repeated at regular intervals during the course of the telephone conversation when the recording device is in use.[/li][/ul]
Also, a recording device can only be used if it can be physically connected to and disconnected from the telephone line or if it can be switched on and off.

http://www.fcc.gov/cgb/consumerfacts/recordcalls.html

The U.S. federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. A majority of the states and territories have adopted wiretapping statutes based on the federal law, although most have also extended the law to cover in-person conversations. 38 states and the D.C. permit recording telephone conversations to which they are a party without informing the other parties that they are doing so.

         12 states require, under most circumstances, the consent of all              parties to a conversation. Those jurisdictions are California,              Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan,              Montana, Nevada, New Hampshire, Pennsylvania and Washington.

         It is illegal under all jurisdictions to record calls in which              one is not a party.

– snip –

The federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510 et seq., prohibits the willful interception of telephone communication by means of any electronic, mechanical, or other device without an applicable exemption. There are two principal exceptions:

                      **Consent**: In the absence of more restrictive state law, it              is permissible to intercept and record a telephone conversation if              one or both of the parties to the call consents. Consent means              authorization by only one participant in the call; single-party              consent is provided for by specific statutory exemption under              federal law. 18 U.S.C. Sec. 2511(2)(d).

                      The "business telephone" exception, which generally allows              monitoring of calls and taping over an extension phone which is both              provided to a subscriber in the ordinary course of a telephone              company's business and is being used by that subscriber in the              ordinary course of its business. This provision generally permits              businesses to monitor the conversations of their employees,              including personal conversations.

http://www.callcorder.com/phone-recording-law-america.htm

[CookingWithGas]

@Giles

Then person C has broken the law in the state where persons A and B are located. You do not have to be physically located in a state in order to break that state’s laws. (However, there may be practical problems in finding, arresting and extraditing the person.)

I don’t follow this line of reasoning. Do you have a cite? The recording is not taking place in the state where the practice is prohibited, so there is no way the person could be considered to have broken the state law. I would think that the only applicable laws in such a case would be federal.

Duckster, you missed an important part of your first cite

The Federal Communications Commission (FCC) has adopted rules regarding the manner in which telephone companies may record wireline telephone conversations. The FCC currently has no rules regarding recording of telephone conversations by individuals, but federal and many state laws may prohibit this practice.

The situation described in the OP did not sound like a telco was involved.

Also, although the second cite is clear and appropriate, it doesn’t address the issue of interstate calls when the laws vary in the two jurisdictions.

[dzero]

@CookingWithGas

Also, although the second cite is clear and appropriate, it doesn’t address the issue of interstate calls when the laws vary in the two jurisdictions.

That’s a good point. I’m in NJ and I believe we follow the federal standard or requiring only the consent of one party. Florida can enforce their laws regarding my actions unless they can somehow claim jurisdiction over me.

Any transaction or communication that crosses state boundaries would seem to be subject to federal law although in the case of telecommunications, I don’t know how that works.

[Gary_T]

My thoughts (“common sense,” I don’t know the legalities): I don’t believe the person recording the call from a state where it’s legal to do so would be prosectuted by the state where it’s not legal to do so. However, I would not be surprised if the latter state (not legal here) disallowed it as evidence in a court case.

[Captain_Amazing]

@CookingWithGas

Also, although the second cite is clear and appropriate, it doesn’t address the issue of interstate calls when the laws vary in the two jurisdictions.

In California, at least, see Kearney v. Salomon Smith Barney Inc. Short summary, Salomon Smith Barney, Inc. was in Georgia, a state where both parties don’t have to be informed of recording a conversation, and they recorded conversations with California customers. The California Supreme Court ruled that California could use their standard against Salomon Smith Barney.

See here for a summary:

http://www.mofo.com/news/updates/files/update02224.html

[CookingWithGas]

@Captain_Amazing

In California, at least, see Kearney v. Salomon Smith Barney Inc. Short summary, Salomon Smith Barney, Inc. was in Georgia, a state where both parties don’t have to be informed of recording a conversation, and they recorded conversations with California customers. The California Supreme Court ruled that California could use their standard against Salomon Smith Barney.

See here for a summary:

http://www.mofo.com/news/updates/files/update02224.html

That’s an interesting case. Note that it was a civil suit. The article mentions, “The California Supreme Court’s decision in Kearney does not find that SSB’s conduct was unlawful, but it does find that California law will decide that question if the case proceeds to trial.”

I’m not sure what is the basis for the suit proceeding to trial if it was not found that the conduct was unlawful. There are some subtleties to law that I will never understand.