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If a company records your phone call to them, they should be legally obligated to consent to you recording the call as well. (lemmy.world)
submitted 3 months ago by to c/showerthoughts@lemmy.world
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[–] 69 points 3 months ago (7 children)

They are, and you should.

Most States are single party consent for recording. That means if anyone on the call wants to record the call, they can. So you don't even need to ask.

A few States require everyone to consent to the recording. If everyone does, anyone can.

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  • [–] 35 points 3 months ago (5 children)

    The following states are all-party consent:

    • California
    • Connecticut
    • Delaware
    • Florida
    • Illinois
    • Maryland
    • Massachusetts
    • Montana
    • New Hampshire
    • Oregon
    • Pennsylvania
    • Washington

    IANAL, but if you are in a one party consent state, and they are in a two party (aka all party) consent state, typically all parties must consent.

    If you call a customer support line and it says "This call may be recorded for quality assurance purposes", then staying on the line means you consent. I absolutely record all customer service calls, because if it goes absolutely terrible, I love knowing I can just play back what they said. I haven't had to resort to that yet, but it's always good to have it as a backup.

    For reference, I just use BCR on my rooted android

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  • [–] 1 point 3 months ago* (1 child)

    Oregon uses a hybrid rule: phone calls are one-party consent under ORS 165.540(1)(a); in-person oral conversations require all-party notice under ORS 165.540(1)(c).

    Ref

    So maybe the whole list is compromised? i.e. make sure you double check what the actual law is.

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    • [–] 80 points 3 months ago (15 children)

    I think the standard US phrasing is, "This call may be recorded for quality assurance purposes." It is a warning to you, but also a concession from them that you may record, since it doesn't say they may record the call, only that it may be recorded.

    See, sometimes you really need the passive voice!

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  • [–] 8 points 3 months ago (14 children)

    I'm not sure that is legally reliable... The word "may" has two meanings, one expressing permission, the other expressing possibility. Clearly they are related, but not the same, so maybe the mean "it might be recorded" rather than saying "permission exists to record it"

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  • [–] 18 points 3 months ago (11 children)

    It doesn't matter which meaning it is. Either way, if a call might be recorded and you stay on the line, you agree to the possibility of it being recorded. Like wise, them saying the call might be recorded could easily mean it might be recorded by you. There is not an instance where they can consent to only them recording, and not consent to you recording, without a much more legally binding contract.

    I always understood it to mean "this call might be recorded" but they are definitely recording. It's like a cheeky "who knows, maybe we'll record maybe we won't" when they are always recording...

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  • [–] 1 point 3 months ago (1 child)

    The way I see it, an announcement was made to all parties that the line may be recorded, not that it might be recorded. If they 'might' record it, that's what they should say, but it's not.

    If anyone stays on the line after that point, it could be being recorded.

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  • [–] -5 points 3 months ago (8 children)

    If someone offers you punch from a punch bowl and warns you, "there might be piss in it" while taking their own glass and drinking some of the punch, they might nevertheless be annoyed if you piss in their cup. Maybe they were only OK with the piss that was already in the punch. Maybe there was never any piss and they were just saying that as a very weird joke. To call it consent to drinking your piss is wrong.

    There's two important parts to this:

    1. Me recording a conversation / drinking my own piss is not the same as you recording the same conversation / causing me to drink your piss.
    2. A comment about possibility doesn't necessarily imply consent anyway.

    I mean, I'm quite open to the possibility that your interpretation is legally valid in the USA, or in some particular jurisdiction - and maybe you or someone else has a reference to back it up! I'm just saying that it seems kind of shaky just on the face of it, and could imagine a situation where a lawyer lawyers out of it.

    And FWIW, I understood it to genuinely mean that sometimes the call is not recorded, because recording every single call might be expensive, or perhaps even some staff object to their calls being recorded. But I'm sure at a lot of places they record them all and use the same "maybe" language.

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  • [–] 4 points 3 months ago (6 children)

    When you refer to "my piss" and "your piss", you imply a distinction that does not actually exist in law. Under wiretapping laws, there is no distinction between the piss of one participant and the piss of another participant in the conversation. When you consent to drinking piss from the punch bowl, you consent to drinking any participant's piss, and not just your own.

    Your entire argument arises from that non-existent distinction; your entire argument fails without it.

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  • [–] 2 points 3 months ago (5 children)

    From California's Penal Code:

    A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, [...] shall be punished ..."

    To me that implies that each person who records the conversation must get the consent of all parties. That's the plain meaning, and for me it would therefore take a further explicit statement to the effect of, "consent to one party recording shall be taken to be consent to any party recording" which I don't see there.

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  • [–] 0 points 3 months ago* (last edited 3 months ago) (4 children)

    Good. We're moving on to a different argument, and abandoning the "piss" metaphor. Excellent.

    You cited this law. Specifically, 632(a).

    I would direct your attention to the definition of "confidential conversation", at 632(c):

    For the purposes of this section, “confidential communication” means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

    Upon any individual on the call stating "This call may be recorded", every party present "may reasonably expect that the communication may be overheard or recorded". When that happens, the call no longer qualifies as a "confidential conversation". As it is no longer a "confidential conversation", 632(a) no longer applies. As it is no longer a "confidential conversation", any party to it may record it.

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  • [–] 1 point 3 months ago (3 children)

    Why is there any clause about consent, if consent is never needed? Seems to me that the conversation remains a confidential one.

    If you're actually a lawyer, you could presumably cite a case where this is so interpreted. If not, it still seems very shaky to rely on this.

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  • [–] 0 points 3 months ago* (last edited 3 months ago) (2 children)

    Seems to me that the conversation remains a confidential one.

    I'm going to assume you're acting in good faith for one more response. I'm going to assume you didn't actually read 632(c). I'm going to parse out all the language that refers to non-pertinent circumstances. And I'm going to make it big and bold so you understand that it is actually important for you to read this:

    For the purposes of this section, “confidential communication” ... excludes a communication ... in any ... circumstance in which the parties to the communication may reasonably expect that the communication may be ... recorded.

    We have a call where one party has said "This call may be recorded". A circumstance has arisen in which the parties may reasonably expect this call to be recorded. This call is now specifically excluded from classification as a "confidential communication".

    Seems to me that the conversation remains a confidential one.

    I don't think you're stupid, and I don't think you're acting in bad faith. I assume that you didn't actually read or comprehend what I previously posted. Moving forward, I will not be making that same assumption again. As soon as the parties are aware that the conversation may be recorded, this particular statute no longer applies.

    Why is there any clause about consent, if consent is never needed?

    Who said consent is never needed? Certainly not I. Certainly not the law. The idea that "consent is never needed" arose entirely within your own understanding; within your own mind.

    This is an eavesdropping statute. This law applies primarily to third parties, not actual parties to the conversation.

    Adam and Bob are having a private conversation in Bob's office, but Mallory has placed a voice recorder under the desk. Mallory is not a party to the conversation. Neither Adam nor Bob have any reason to believe anyone is recording. This is still a confidential conversation, even though it is actually being recorded. Adam and Bob would both have to consent, or Mallory can be charged under this law.

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    • [–] 26 points 3 months ago (-1 children)

    They is why there is the concepts of one party and two party call recording consent.

    If you are in a one party area, you absolutely can record the call without telling them.

    Not entirely sure how it works with 2 party areas if both parties want to record the call. I am not fro a two party area.

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  • [+] 2 points 3 months ago*
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  • [–] 5 points 3 months ago (-1 children)

    Interesting question: what if the call crosses from a two party area to a one party area?

    The party in the two-party area needs to get consent from the other, but the party in the one-party area doesn't.

    Anybody who tells you the party in the one-party-consent area needs to get consent because the call crosses jurisdictional boundaries is a totalitarian piece of shit who believes in extraterritorial jurisdiction.

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    [–] 21 points 3 months ago (4 children)

    They do consent. "This call may be recorded" is giving you permission.

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  • [–] 5 points 3 months ago

    Thats correct. I am in charge of this for our company and basically an option off the main menu that is recorded will give this message before fully transferring to that queue. This allows the reps to not have to say it every single time they talk to someone, which could also mean they forget to. For the extensuons the message plays before they are allowed to speak once someone picks up.

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    • [–] 17 points 3 months ago

    I'm pretty sure they are. Them telling you that they're recording the call is both them "getting your consent" to the recording (Because you continued the call) and them consenting to the recording. They may not think you will have a copy of the recording, but they basically started by saying the call can be recorded.

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    [–] 9 points 3 months ago (9 children)

    In Portugal the law states any party can record as long it gets consent from the other parties, and those consents can be withdrawn at any time.

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  • [–] 11 points 3 months ago (5 children)

    In finland, you can record any conversation that you are a part of, without asking.

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  • [–] 2 points 3 months ago (4 children)

    Can you point me to the law that allows that?

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  • [–] 2 points 3 months ago (2 children)
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  • [–] 2 points 3 months ago* (last edited 3 months ago) (1 child)

    Am I reading the correct bit?

    Chapter 24, section 5 - Eavesdropping

    A person who unlawfully listens to or records with a technical device

    1. a discussion, talk or other sounds of private life, where these are not intended for his or her knowledge and which occur or arise in a place covered by the right to domestic privacy, or
    2. secretly, elsewhere than in a place covered by the right to domestic privacy, talk that is not intended for his or her knowledge or for the knowledge of any other third parties, where the circumstances are such that the speaker has no reason to believe that a third party is listening shall be sentenced for eavesdropping to a fine or to imprisonment for at most one year.

    An attempt is punishable.

    This to me seems like it reads against what you are saying no?

    EDIT: And actually, isn't this more about an unknown third party anyway?

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  • [–] 2 points 3 months ago

    Laws operate by restriction, not allowance. That which is not prohibited is permitted.

    The probibitions on recording only apply to third parties. If you are part of the conversation, (or the participants have no expectation of privacy) it is permissible for you to record that conversation.

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  • [–] 2 points 3 months ago (1 child)

    consents can be withdrawn at any time.

    Hmm, ex post facto?

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  • [–] 2 points 3 months ago

    More to say, if I agree to the recording at the beginning and then a few minutes into the call change my mind, that's allowed.

    I can't really wait until an hour after the call, realize I shouldn't have over shared and ring you to say that you can't record our call.

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    • [–] 7 points 3 months ago (7 children)

    They inform you so that you can retract consent (by hanging up)

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  • [–] 10 points 3 months ago* (6 children)

    The problem is that there's often no alternative means to access the service(s) you need. There should be a way to revoke consent without disconnecting.

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  • [–] 5 points 3 months ago (4 children)

    When you are connected with a person, you can often ask for a non-recorded line, though they don’t advertise it. It’s not ideal that your call is recorded until that point, and it’s obviously an extra hassle, which is still a problem.

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  • [–] 3 points 3 months ago (1 child)

    Having worked in a call center, I would be surprised if such a thing is even possible.

    That said, the call recording software was so bad, less than half of calls were actually recorded anyway. But they tried on all of them.

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  • [–] 2 points 3 months ago*

    I only know about it because I worked in a call center and it was literally impossible at my phone, but we just transferred it to a manager’s direct line.

    It may well depend on what type of call center it is though, because we dealt with privileged information in many calls. I’ve done it as a caller since, but only with similar places, so I could a sales center or cable company being different

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  • [–] 1 point 3 months ago (1 child)

    Single party consent means that your consent is irrelevant; they are permitted to record anyway, even if they told you they are not.

    It also means that their consent is irrelevant: you are permitted to record anyway, even if you tell them you are not.

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    • [–] 6 points 3 months ago (4 children)

    Can they record you without consent where you live?

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  • [–] 2 points 3 months ago (3 children)

    Single party consent means that you can record yourself, and you can record anything you hear. Your participation in the conversation is your consent.

    The only way to revoke your consent is to withdraw from the conversation.

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  • [–] 1 point 3 months ago (2 children)

    Where is this? In Germany at least consent has to come from all parties

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    • [–] 5 points 3 months ago

    At least in the UK, they do.

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    [+] 3 points 3 months ago (1 child)
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    • [–] 3 points 3 months ago

    Varies by jurisdiction but in Australia on most calls you can just tell the operator that you do not wish for the call to be recorded.

    You could ask them if you may record the call and I guess they would have to follow their own policy on that.

    Why would you want a recording though ?

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    [–] 3 points 3 months ago

    I don't record my calls, but I take remarkable meticulous notes that I'm happy to call upon should the need arise. If there's a dispute, the company can produce recorded evidence to demonstrate that the notes I've taken were incorrect.

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    [–] 4 points 3 months ago* (last edited 3 months ago) (1 child)

    Americentrism.

    That's just the standard in most of EU, two party consent.

    Though it's a weird thing where in some of EU, legally, not hanging up when it states "calls may be recorded" counts as consent

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    • [–] 2 points 3 months ago

    When you get the "We are recording for..." and you stay on the line that means you've consented and they've consented to recording at that point.

    That's how it works so record away.

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    [–] 6 points 3 months ago (7 children)

    In Europe smartphones have all call recording features disabled. "Because of regulations". So corporations and scammers can record us whenever they wish, bu lt we cannot, even though it would provide us some defence. I thing the 'regulations' here protect the wrong side. Which is surprising, as EU is usually quite decent in consumer protection.

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  • [–] 2 points 3 months ago (4 children)

    My google Pixel on Android 17 promoted me a few times to record it.

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  • [+] 1 point 3 months ago* (last edited 3 months ago) (2 children)
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  • [–] 3 points 3 months ago (1 child)

    To get around the legal side, they built a mandatory audio warning into the app. The moment you hit record, it loudly tells the other person they’re being recorded, which checks the legal boxes for consent under EU privacy laws.

    As a resident of a one-party-consent state, I absolutely loathe that fucking thing. Who the fuck does Google think it is, to unilaterally decide that I'm not allowed to exercise my right to record without notice?!

    That reminds me, I need to check if GrapheneOS gets rid of the asinine warning.

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  • [–] 2 points 3 months ago

    Most calls to companies start with you having to listen to their blurb about how they're unusually busy at the moment and need to press some numbers before speaking to anyone. Presumably hitting record during that stage is adequate for legal purposes but the company will never hear the warning, so do it then. Obviously that doesn't help with incoming calls.

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  • [–] 1 point 3 months ago

    I tried some of those apps. Sine would be 'Unavailable for my device', some would install and start, but not work, because if unavailable API and some would pretend to work, but 9nky record my side of the call (using microphone not actual call audio). Samsung decided this should not be available for me, even though it would be legal here. But I may give it a try again. Maybe thing changed.

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    [–] 1 point 3 months ago (-1 children)

    In order to share the file with you, you will have to get credentials with the company that will certainly require some degree of identity proofing.

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