One important tool in dealing with companies is customer’s ability to record customer service calls, but many wonder if it’s legal or not. Well, until a company actually takes someone to court for doing it, we’ll never know for certain. However, we can look to the state by state wiretapping laws for guidance. Let’s begin.
States either have laws requiring one-party or two-party consent. One-party means just one person, which is to say, yourself, has to be okay with recording the call for it to go forward. Two-party means that both parties have to agree to the call being recorded. These are mainly in place to prevent law enforcement from abusing their ability to listen to phone conversations, but if you want to be super-safe, you can make your call from one of the one-party states.
If you should actually ever try to ask permission to record the call. Most customer service reps are trained to terminate the call if the customer is recording the conversation. Kinda strange, considering that every single one of their robo voice lines says, “This call may be recorded,” but hey, that’s the breaks.
Here’s the state-by-state breakdowns, inside…
States Requiring Two-Party Notification
California
Connecticut
Florida
Illinois
Montana
Michigan
Maryland
Massachusetts
New Hampshire
Nevada
Pennsylvania
Washington
States Requiring One-Party Notification
Alabama
Alaska
Arizona
Arkansas
Colorado
Delaware
District Of Columbia
Georgia
Hawaii
Idaho
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Minnesota
Mississippi
Missouri
Nebraska
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Texas
Utah
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Vermont
Virginia
West Virginia
Wisconsin
Wisconsin
Check this post for options to start recording your calls.
(Photo: Getty)
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@Trollkiller: no prob. I made things clearer in that last post.
What happens if the call center is in India or the Phillipines?
@trollkiller: You consent is given by continuing the conversation. You could state that you do not consent to being recorded, in which case the company would need to turn off any recording devices (if the are in a two party state) before continuing, or end the call. But with the notification, your engaging in the conversation would be in itself, consent.
As for Catperson… she sounds like a rep that has been fed some disinformation by an employer to get them to weasel out of possibly being recorded…
I once had to explain to a customer that just because the recording says you may be recorded doesn’t mean that it has been. She wanted me to get the recording of a conversation she had with some other phone monkey to prove that she was promised something that wasn’t documented. I had to explain to her that our system only trapped about ten conversations per week per agent, which were then listened to by supervisors so they could critique us, and were then deleted (if not needed for disciplinary action.)
@Catperson: You bring up a very interesting angle, not sure I agree with you but I do see where you are coming from.
As for ownership of the recording… hmm. I know under copyright law the person that “fixes” it to the median is the copyright owner. If you both “fix” the call then you would each be owner of your respective recordings.
Yeah I will have to disagree with you, both parties are giving prior consent to be recorded. (At least in Florida. Check the statute I posted)
@Goller321: I’m not sure how anything I said could be construed as me representing a company trying to weasel out of being recorded. All I said was that it doesn’t count as consent if you use the company’s recording, and that’s just based on common sense. I am no longer a rep anywhere (thank God), but I don’t remember ever being told anything about what to say to customers who wanted to record a call. However, you bring up a good point. Most companies would disconnect the call if you actually told them you were recording it. That would seem to indicate they aren’t really giving consent to be recorded and wouldn’t appreciate it if a customer did record them.
@goller321: If you look at the Florida statute I posted it says all parties must give consent prior to the interception taking place. I saw nowhere in the chapter about implied consent.
The recordings never say “if you don’t want to be recorded press #1″ they never say “if you do not consent please hang up and call this number”
Wait I lie, I had to call either Virgin or Boost to activate a cell phone and one of them (sorry can’t remember) did say to tell the operator if you did not want to be recorded.
The point is the customer is not given the question of consent, therefore is under no obligation to recind a consent never given.
Doesn’t the word “may” imply approval?
It always says “This call may be recorded”, which I take as gives permission, as opposed to saying “This call may not be recorded”.
T@Landru: To me the word “may” means “has the possibility of”. Example: “I may stop by the store on my way home.”
In the recordings case it tells me that not all the calls are recorded and this particular call may or may not be recorded. I have still not given consent nor has the recording asked me for my consent.
I actually had a caller the other day who tried the earlier “trick” mentioned on the consumerist. Right then and there I hung up on him saying that I don’t agree to be recorded.
Frankly, I agree with reps hanging up on you if you even hint you’re recording. Because some of the people who call in a truly crazy. If someone called up and said before he began a description of his problem that he was touching himself to your voice, would you want him to record your call?
@BigNutty: The instant you say you’re recording, I’d disconnect you without listening to anything else you have to say. As would 99% of the other people in call centers. “I’ll sue you if you don’t agree to my demands” is laughable and, sadly, a common thing said by callers.
When they give notification that it will be recorded it is usually not a person. What if you say that you are recording the conversation before the operator is actually on?
If you record a conversation, and you sue the company and plan to use the recording in court, but it is deemed that it cannot be used as evidence, but you have memorized the conversation, can your testimony be used?
What if you mail the company a letter that signifies that any calls to them will be recorded?
@trollkiller: Let me ask you this: When is the last time you have heard of a company using a recording to pursue legal action against a customer?
The calls are recorded for training and quality purposes. A company that I worked for had a quality group that would pull each rep off the phone to listen to 1 or 2 of their calls and they would then rate them [the calls]. They were ALWAYS deleted after 30-60 days unless there was something of special interest on the call (something the company wanted to keep to protect themselves, which I don’t recall ever happening). This was all done digitally on the computer and stored on the computer as well.
I am amazed that people are acting so petty by trying to rationalize tricking a call center rep into allowing a call to be recorded. Then again, given the direction that consumers in the U.S. are heading these days I’m not really that surprised at all. And consumers are putting all of the blame on the companies. I think there is a lot of blame to go around and to be shared on both sides. Probably not equally, but consumers definitely aren’t 100% innocent. A few bad apples have ruined it for the bushel.
I have a solution.
Volunteer for a federal wire tap.
Yes you can really volunteer for a federal wire tap. Actually you are authorizing the feds to tap if they so desire, which does not mean that they will actually tap the phone. And there has to be legal grounds for the tap, such as repeated phone calls from your cousin the escaped federal prisoner asking you to wire $ to his new home. But hey, if you got a reason, the Feds might just have a tap for you.
Then whenever you call a customer service person you can honestly say that you participate in a legal federal wire tap and all calls MAY be recorded by the Federal Government.
Which, according the foil beanie crowd, the Feds are recording every phone call, so may be we can just start reminding the Customer Service reps that our Dear Uncle is already recording every call and any other recording devices are redundant.
@HeHateMe: I don’t know of anytime that a generic “you may be recorded” call has ever been used in a court, but I have not researched the issue. To me it does not matter if they ever use the call in court, the point is I have not consented to the recording.
I agree with trying to trick someone with the “I sound like you” bit. Seems that would get tossed in a heartbeat in court. If a reasonable person thinks it is a joke then it is a joke and unenforceable.
If I am going to record someone that has not given consent by the generic recording, I will tell them straight out I am recording them. Fair is fair.
Ok, two important things:
One, you don’t know what state the actual call centre worker is in. Or even the country. Even if YOU are in a one-party state, who you speak to isn’t necessarily. You can’t just decide to record because of your location. Takes two to tango here. I work in a two-party consent state and we were told to hang up on anyone who said they were recording if they refused to stop.
Two, when the calls are recorded for quality and training purposes that’s really it. They don’t keep the calls. They check on a few in a month to make sure you’re doing your job and then they’re all purged. So if you decide to be an irate customer demanding we listen to your call history, we really can’t do that either. The only way the calls may be used for other purposes is if you’re continually threatening people every time you call in. And i mean very harmful threats, not just “I’m going to sue you evil bastards!”
@Ratty: Does not matter where the caller on the other end of the line is, what matters is where you are if you are the one doing the recording. The act of intercepting the call is occuring where the person initiating the recording is.
If you really want to get fancy the FCC regulates interstate calls and the interception law you would have to follow would be the Federal law. Except where the state law trumps the federal law. In this case the state law that would trump it would be the all party consent states.
So where a one party consent state person COULD record without your consent, you being in an all party consent state COULD NOT record without consent.
Easy, simply record the call and never mention it. If you end up in court, merely “refresh” your memory by transcribing the pertinent part of the conversation and claim you took copious notes during that call.
@vastrightwing: Stop it or you will kill off this thread…. I work nights and I need this to stop the boredom.
@HeHateMe:
Quoted For Freaking Truth.
Everyone is convinced that they can’t be the problem, it has to be the company. It can’t be the consumers, who sign up for something they think sounds neat, but when they later see it’s not so neat, they try and say they were tricked. It can’t be the consumers who demand $400 worth of free goods because of some imagined slight. It CAN’T be the consumers who start fights, prank call executives, sue their neighbors for asinine reasons, or who flat out cheat companies and are praised by everyone for doing so.
Oh NO, it HAS to be the companies.
I work in one of those customer service centers.
When that say to word “may” as in “May be recorded”, you might as well just say “will” as in Will be recorded”. They use them for quality ratings for their techs.
Of course, most of the time, the good techs get screwed over because they actually try to help someone, and they get a poor rating because they didn’t say something like the company wants them to.
We have to apologize for everything. “I’m so sorry that you don’t know the difference between a monitor and a computer, and I apologize for any inconvenience.” How stupid is that?
Ok for clarity, in a one party state, you don’t have to tell them you’re recording the call! That means you can just record it, period. I’ve done this and won a lawsuit against the state in Oregon.
i live in a one party state not that it really matters…when i got dishtv they screwed me (what’s new)…when i called to complain and spoke to a supervisor i told him i had recorded the original call (even though i didn’t) and he told me it was illegal for me to do that…i told him it wasn’t and he asked if i was recording this call…i said maybe, maybe not and he hung up on me…my advice, tape the call…don’t tell the stupid supervisors at the call center you recorded the call…save that for the corporate office…
@Catperson: “May” can be used to mean “possibly,” as in: “your call will possibly be recorded.” “May” can also be used to mean “allowed,” as in “your call is allowed to be recorded.”
The way most of these messages are phrased is ambiguous, not clearly imposing the intended sense of the word. You, the caller, may wish to record the call, for quality assurance purposes. In fact, that’s probably the only reason you’d care to record the call. Since the phrase may be interpreted either way, and either interpretation makes logical sense in context, I don’t see what the problem is.
I think that the two party states need to impose some sort of “mandatory mutual consent” laws, so that both parties automatically have permission to record a conversation as soon as one party gains permission. In other words, there is never a case when only one party may and the other party may not record.
@Ratty: I’m not sure that matters. If they’re dealing with you, they’re likely to be doing business in your state, such that suing them in your own state’s court is likely to be effective. (Granted, they can try to remove the case to somewhere else, but there have to be more grounds for that than “we want to”).
Anyhow, might as well record if you’re in a 1-party state or there’s reason to believe a recording is being made on the other end — the worst thing likely to happen is that a court will find your recording inadmissible when you try to use it. (The federal wiretapping laws I’m familiar with apply mostly to telcos, so there’s not much to worry about in terms of issues in federal court related to recording a call you’re party to)
That said — IANAL, my business law class was a long time ago, and I haven’t had the time I was hoping for to read the wife’s textbooks. Certainly, you need to talk to a lawyer licensed in your state for actual legal advice.
If I live in a two-party state but get a cell phone in a one-party state with an area code in the one-party state but then travel back to the two-party state and record the call from the cell phone is it legal?
I dunno. It seems that if both parties know a phone call is being recorded (which is what happens when THEY inform you and YOU give them permission by remaining on the line — because it’s not like you can decline and still get CSR help) then it’s irrelevant if you happen to ALSO be recording what THEY are ALSO recording because both parties know the phone call is being recorded, RIGHT????
Seriously, that is a solid argument.
Both parties know the phone call MIGHT be recorded, nowhere in the law does it state that once both parties know the call might or is being recorded that only the person who issued the notice has a right to record the call.
I think that would stand in a court of law.
In other words, once both parties know, the law doesn’t say that only one party has the right to actually do it. It’s a two-way agreement which gives you equal right to do what they’re doing to you.
@trollkiller: This was kind of related to the question that I was going to ask. I have an IL(two party) area code on my cell phone, but live in MO(one party). My thinking is that even though I have the IL area code, the calls are originating in MO, so I would be a one party caller. (keeping my phone in IL also saves me from a city cell tax of about 10%)
As someone who has dealt with setting up such a system, trust me, with modern VOIP systems, good audio compression algorithms, and cheap storage (1 TB for $200!) it is incredibly easy to record each and every conversation into a customer support line.
If you are talking to a big financial institution/brokerage house, assume that you are being recorded 100% of the time. Credit card companies are iffy. Cable/utility companies, no way that they have upgraded yet, since they all outsource.
Is there not some sort of implied consent if you are notified a call is being recorded in a two-party state?
If you are notified on a recording that the phone call may be monitored, the CSR should be aware of this policy and has thus implied consent to be recorded. Then couldn’t you just record it at that point without notifying them further?
In PA (two party consent), the law specifically excepts call centers in allowing them to record calls “for quality purposes”. Citizens do not have the same right.
So no, you can’t legally use the excuse that since they’re recording, you can too.
If the state from which the call is made or recieved is a single party state, then no notification is necessary as per Telephone Consumer Protection Act of 1991. If it is recieved outside the U.S. then Federal law allows the calling party to record. You can go to [www.fcc.gov] this might clear it up for you.
NYTMARE: I’m not sure you’re right on that, otherwise they wouldn’t have that disclaimer at the beginning of the call (which I heard all the time when I call different CSRs) — the one that says the “call may be recorded for quality control purposes”. (If it were legal for them to not inform you, why would this be a standard?? It’s not like corporations do things like that without being told to!)
But regardless, my point (and the one by Daniel-Bham) in the cases where that disclaimer is played, the consent is implied and that means you’re cool to record, too. Seriously: the law doesn’t state that the consent only applies to the person asking for it. If both parties know the call is being recorded, then where in the law does it say only one party can legally do so????
And whatever the case may be, if this ever came to trial, it would be something where a consumer caught a company doing something illegal. Let then try to “strike back” by trying to get the evidence dismissed or counter-suing for some ridiculous claim that recording a CSR conversation is a privacy violation and see how far that goes.
I pay my bills and conduct business over the phone using Skype, and I record each transaction – taking notes while doing so (Dates, times, agent ID details, etc.) and back-up the data to either CD or USB storage drive. There has only been a couple instances where I have needed to present evidence from the data I collected in order to prevail in a dispute. Both times I attached the relevant audio file, summary of the agent’s actions, and identifying information, to my e-mail. It got immediate positive results and I was happy with both outcomes.
Just peace of mind from knowing I am covered when something goes wrong with one of my transactions is worth the extra hassle to me. (It seems a bit over the top to some of my friends, but even they admit that it would have been helpful to have some sort of evidence when they have had problems dealing with some businesses in the past.)
So glad I live in a “One-Party Consent” state (MN)!
@Miguel Valdespino: Exactly.
Next time I hear “This call MAY be recorded for quality assurance purposes.” I will say, “Thank you, will do.”
I know that the last several times I’ve been on hold and have heard the “Your call may be recorded line” I have also heard a followup of sorts saying “If you do not want the call to be recorded please notify your service representative”…
From actual California law, Penal code 632(c):
This seems pretty cut and dried – if both parties reasonably expect that the communication may be recorded, then it isn’t illegal to record it. So when they say they may record the call, you’re free to record it. Make sure that you’ve heard them say this, and if you’re confused, just ask if THEY might be recording the call, and you’re in the clear.
IANAL, don’t take this as legal advice, yadda yadda
Maddypilar has a great idea, recording it if the basta^H^H^H^H^Hcompany’s recording says that, but here’s another suggestion:
Record the call, then type out a transcript and post it on Consumerist.com or send it to the CEO, or whatever cheeses them off. If a cafuffle arises and they deny it, _then_ let them know you recorded it and see if they change their tune, especially if you catch them lying.
Personally, I don’t see why recording should be illegal if the recording is not used in a court of law or not heard by anyone other than those being recorded.
Just because it’s not permitted doesn’t mean it’s wrong. Ask Rosa Parks.
Look guys and gals, alot of calls are not only recorded but are run through a voice stress analysis program to verify you are really the account holder or are really going to pay your bill.
If you get this then you will understand why they always ask for your name, birthday, last 4 of social security numbers, etc even when you enter or say this stuff into the phone before being connected.
Word to the wise:
Get the CSR’s name and identifying number FIRST before any other conversation is had. This way, if they hang up on you, you have it recorded and can make a specific complaint about them when you do finally get to management.
@Lyrai: It’s called The Consumerist not The Corporation. I don’t really need to link to the multitude of stories here where the company rips off the consumer, do I?
I’m surprised there’s so much talk about whether or not these recordings would be admissible in court when it is much more likely that we’ll just post them on the Internet anyway.
I don’t care what the law says, I am going to record all calls without giving notice. If and when I determine that I need legal action, I will present the recordings to my lawyer and she can determine if it is legal to present these as evidence.
The whole reason to record in the first place is if the dispute is over a trivial matter (such as an AOL account) and it does not make financial sense to hire a lawyer. Then you can use the recordings (while editing out your information) to anonymously embarrass the company.
@trollkiller:
In a situation where the federal courts have original jurisdiction (interstate calling, interstate trade), the federal law applies and the state law does not, regardless of the relative strengths of the laws, assuming that you will file any complaint with the federal courts. That said, if the call is to a company which is based in your state, if you have allowed the company to assign jurisdiction (most contracts state the jurisdiction in which all disputes are to be considered), or file suit in a local court, the specified jurisdiction applies.
@econobiker:
Wow, I don’t think I’ve ever heard a bigger, more steaming pile of horseshit.
I don’t even think I need to explain why that’s utterly wrong. I hope that you were being facetious.
@dame1234:
You would need evidence to back up the claim that you were calling from the one-party state with a two-party state’s area code, but sure.
@legerdemain:
“One party” legally means that you can record without notifying the individual on the other end of the phone. “Two party” means that notice was given. “Two Party” does not mean that *BOTH* parties have to ask each other the question.
@pointman_12:
If asked, lying or being ambiguous about the recording will make it inadmissible, unless you’re law enforcement and are involved in an official operation with dotted Is and crossed Ts.
A light bulb just lit, try this out. You are not allowed to record when it may likely expose evil. Recording to give one an edge over government or corporate entities is expressly forbidden and may be punished. So from now on, just tell everyone your recording. I know I will…, How about some good citizen making a site for posts of corporations hanging disconnects after disclosure. Stop trying to bend the laws, we can not win. Now for real business, think about the Iraqi citizens and their rights. If it can happen there, it can happen here. People are never worried about rights until it happens to them.
I live in Washington State and the way I do it, is the first thing I say, before even giving my name, is something like “Since I live in a 2-party consent state, and I don’t want anyone to fall victim to felony wiretap charges, I give my consent that this call may be recorded.” IANAL, but I do believe that would meet the test for two-party notification, since their recorded message says they may be recording, and I’ve just notified them that the call may be recorded (though using a somewhat different definition of the word ‘may’).
What happens when they have to call someone else or contact another person. I’ve been on the phone with a business before and they reached out to a local store to see if they had the part instock and cut me a check and reimburse me for it. Whenever the guy calls the store I doubt he tells them it is being recorded.
Here’s an interesting excerpt found in a google book search.
Compilation of State and Federal Privacy Laws
By Robert Ellis Smith, James Sulanowski
From page 24, talking about Washington state:
Washington-Electronic interception of communications is permitted if all parties to the conversation consent. An announcement by one party that the call is being recorded complies with the two-party consent requirement.
My read on this is the same as some other commenters. If the company says “may be recorded”, then both parties have consented.
You consent, by staying on the phone.
The call center rep consents by holding the position.
The laws seem to be looking only for consent to being recorded, not consent to being recorded ONLY BY A SPECIFIC PARTY.
Further, the “may be recorded” sounds like explicit permission to record. If that’s not what was intended, the notice should have been “this call MIGHT be recorded”.
No ambiguity that way.
Ooh, and for no-notice, call tapers in one-party states, have a google at Kearney v. Salomon Smith Barney, Inc., S124739 (Sup. Ct. Cal. July 13, 2006)
In that case, the state of CA (two party state) sued SSB for recordings of Californians made without notice in SSB’s GA (one party consent) call center.
/chris