Supreme Court Case Law Supporting Customer's Right To Record Customer Service Calls

In the extremely unlikely event that a customer were sued for recording and publishing a customer service call, we feel that the courts would decide in the consumer’s favor, based on the following case law…

Rathbun v US basically said that if one party of a phone conversation gave the thumbs up, it was kosher to admit a recorded phone call as evidence in court.

The clear inference is that one entitled to receive the communication may use it for his own benefit or have another use it for him. The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone. It has been conceded by those who believe the conduct here violates Section 605 that either party may record the conversation and publish it.

…Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of Section 605, interception, has not occurred.

RATHBUN v. UNITED STATES, 355 U.S. 107 (1957)

Now, we may consider the admissibility of a call as evidence a much harsher standard then whether it’s ok for one party to record a phone call. So if it’s ok by the stricter standard, then simply recording it would seem to be ok.

Also, once something crosses state lines, doesn’t it become Federal by dint of the Interstate Commerce Clause? There’s no specific precedent for this with regard to wiretapping, but if there was, the following would apply:

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

18 U.S.C. Sec. 2511(2)(d)

The Federal law basically says that as long as it’s you having the conversation, it’s perfectly fine for you to record a customer service call. And why should it be, they’re recording you, right?

Big caveat: we’re just researching and are not lawyers, so it’s entirely possible we have no idea what we’re talking about. Illuminate us. — BEN POPKEN


Edit Your Comment

  1. nweaver says:

    One other question, when they notify you with the “This call may be monitored” crud, doesn’t that mean they TOO Have implicitly given consent for montoring, even in a two party state?

  2. FishingCrue says:

    While I support the 1 party recording standard, I don’t think you can read federal criminal law to allow recording. Just because something is not a federal crime doesn’t mean that it’s legitimate.

    Further, federal precedent is applied to the states through federalism, not through interstate commerce. Federal jurisdiction is asserted through (the legal fiction of) the interstate commerce clause.

    Upon Shepardizing you’ll find that the above cited case was explicitly superseded through federal congressional action as outlined in S. Bell Tel. & Tel. Co. v. Hamm, 306 S.C. 70 at 75. Notwithstanding that both cases have little to do with whether recording is allowed in a civil matter.

    Focus: Lack of a federal prohibition doesn’t give Congress’s blessing. States should pass laws that allow for one sided recording as part of their evidence code (query whether a “record” under the Federal Rules of Evidence cover phone records captured in an electronic medium).

  3. alhypo says:

    I guess I would say to go ahead and record customer service calls regardless. If you don’t get anything good, destroy them immediately. If you do get something good, I don’t imagine the company is going to sue you. It seems like a public-relations nightmare.

    As for the question about whether such recordings are admissible: is that even relevant since you pretty much waive you right to sue in every service agreement?

  4. MadMolecule says:

    Something else worth pointing out here. The statute you quoted says: “It shall not be unlawful under this chapter for a person not acting under color of law to intercept a…” etc.

    In other words, that specific chapter of the U.S. Code doesn’t outlaw it. There are still approximately nine kabillion other chapters that might. Perhaps someone else will come along who’s actually done the research and can give a definitive answer.

  5. Trai_Dep says:

    Could you imagine how wonderfully inept it would be for a multinational conglomerate to sue a customer that caught their customer service reps being total asshats? Wow, extend the news cycle of that particular story to 2010!

    I can’t believe anyone would be that stupid. Even Wal-Mart.

  6. TheGoodReverend says:

    It’s a fallacy to argue that it would be “okay” (as in, legal) to record a telephone conversation if the conversation is “okay by the stricter standard” of being allowed into evidence in court. The set of all things admissible as evidence is not a subset of things that are legal. For instance, there is a rule that says that business records can be allowed into evidence in court. If two hitmen had a partnership and kept records of all the people they planned on murdering, those records would be admissible under this rule. But it is also illegal to make such records–it’s conspiracy to commit murder. It could be entirely feasible that recorded phone conversations are admissible as evidence, and yet it is illegal to make them.

  7. TinaT says:

    @nweaver: I’d like to know that too. If they are recording the call, isn’t it fair that you should be allowed to record it as well? Is that enough legal justification?

  8. humphrmi says:

    I would worry less about a company suing you for recording their phone call than being arrested. The company in question doesn’t need to sue you, if it is illegal to record phone conversations then all they need to do is file a complaint with the police and let them be the bad guy. Then they can look like a victim in the press.

    But that said, I agree with nweaver… we ought to find out if a company who notifies you that they might be recording & monitoring calls gives their implicit permission to record them…

  9. Vinny says:

    Wiretapping is not relevant here. Wiretapping involves the interception and or recording of a call by a third party.

  10. Nytmare says:

    Don’t equate recording with disclosure of the recording; those are two separate actions.

    Also be careful of the word “interception” because in law it’s applied to the recording device, not necessarily a third party.

  11. Antrack says:

    Also, keep in mind that if you happen to be a citizen of the same state as the company, you’re probably subject to state law, not federal.

    I’ve been told by a law professor that Illinois state law only allows you to record conversations with the permission of all involved parties.

  12. ExGC says:

    TinaT – That might be fair, but it isn’t the law in two party states. In those states, both parties must consent to any recording. You consent to their recording by staying on the line after being told that they might/will record. For you to record, you have to do the same thing. Tell them and let them choose to stay on the line without telling you that they do not agree to the recording. They can tell you that they don’t consent and if you then decide to remain on the call with them, you cannot record them.

  13. dextrone says:

    *cough*, If you ever got to a lawsuit with that company{you know the one yo recorded on the phone} chances are that their lawyers will do something to make it *illegal* to record that call…..

    Just my latest theory based on “Retail Store/Company Corruption”

  14. JohnMc says:

    The issue is does the conversation end up in court? If it does and is entered as evidence then under procedure, you (or your lawyer) have a right to examination which would include the full length of the recording.

    A a little observation. If you know you are being recorded. Then at the beginning of the conversation talk to the microphone and ignore the CSR. State the date and time. Then start the conversation. At the end restate the date and time. Do that any call to a CSR.

    If you end up in court, and subset of a conversation was offered you can point out that this is an incomplete transcript.

  15. FLConsumer says:

    Does anyone happen to know what “the spirit of the law” was when the recording laws were written? From what I’ve seen by reviewing the laws in several states, it appears that they were aimed more at wiretapping than others.

  16. econobiker says:

    Companies may not be just recording your call but also may be applying voice analysis to determine whether you are telling the truth about being you (security questions) or whether you are going to pay a bill (truth or falsehood)…

  17. dbeahn says:

    The upshot is that as long as both parties are aware they are being recorded, it’s NOT illegal to record the call. Since all companies have that little warning that calls may be recorded, that means both parties are aware they’re being recorded.

    The rules concerning using that recording you made in court – that’s often up to the judge.

    Everywhere I’ve worked they’ve been quite clear that if a customer says they’re recording the call, you are to tell the customer to stop recording or you will hang up, and state that the customer does not have your permission to record. Sony is the very worst about this.

  18. mbrutsch says:

    As long as your recording captures the ubiquitous “this call may be recorded for quality assurance purposes”, then the tape itself serves as proof that they gave you permission to record the call. One day, they’ll get smart, and change that message to say “WE may record this call…”; when that day arrives, you know it’ll show up here on Consumerist first.

  19. vannhaarl says:

    Almost every call to a customer service number includes the pre-recorded warning that ‘this call may be monitored or recorded’. So how about this – you simultaneously play your own pre-recorded message warning them that YOU may be monitoring or recording the call. The idea is to have your warning out before the call reaches a live person (who may chose to disconnect the call). You should now be able to legally record the call (as well as use it in court).

    If the other party (company) claims that you were being disingenous in playing your warning before reaching a human operator, well it doesn’t make sense that they should be able to play pre-recorded bullshit at you without you being able to do the same.

    Any Legal Eagles care to comment on this?

  20. Ivylady says:

    What we want the law to be is irrelevant. In Illinois, for example, the legistature went out of its way to re-define “conversation” in its criminal eavesdropping statute to make it clear that ALL parties to a conversation must consent to its recording. Recording without consent is a crime.
    This was in the 1990s after the state Supreme Court said that one party’s consent was enough.

    That being said, the idea of recording your own “this message may be recorded” line and playing it when you call (wait, wouldn’t it be easier to SAY it than to hold your Casio tape recorder up to the phone? But I digress…) is just silly. Maybe you’re thinking of “implied consent” (which is what you give when you don’t hang up after they play their recording), but that doesn’t work if no one hears you say you will be recording. Oh, I know you’ll say that they should have heard it, and that you feel its only fair, blah blah blah. That argument will come in handy when you’re trying to complain to your probation officer that even though you failed your random drug screening, you shouldn’t have been convicted in the first place.

    This is a long way of saying that if you want the law to change then work to change it. However, many people have found out the very hard way that ending up a criminal defendant is a really hard way to buck the system. It’s only for the VERY dedicated.