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

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