Telephone recording laws are laws that govern the civilian recording of telephone conversations by the participants (as opposed to laws controlling government or law enforcement wiretapping).
Telephone tapping is officially strictly controlled in many countries to safeguard an individual's privacy; this is the case in all developed democracies. In theory, telephone tapping often needs to be authorised by a court, and is, again in theory, normally only approved when evidence shows it is not possible to detect criminal or subversive activity in less intrusive ways; often the law and regulations require that the crime investigated must be at least of a certain severity. In many jurisdictions however, permission for telephone tapping is easily obtained on a routine basis without further investigation by the court or other entity granting such permission. Illegal or unauthorised telephone tapping is often a criminal offence. However, in certain jurisdictions such as Germany, courts will accept illegally recorded phone calls without the other party's consent as evidence.
Canada
Canadian law requires that at least one party in the phone call be aware of the recording.[1][2][3] However, the Communications Security Establishment can be allowed to wiretap any conversation approved by the Defence Minister.[4]
India
In India, telephone tapping has to be approved by a designated authority. It is illegal otherwise.[citation needed]
The Central Government or State Government is empowered to order interception of messages per section 5 of Indian Telegraphic Act 1885. Rule 419 and 419A sets out the procedure of interception and monitoring of telephone messages. There is a provision for a review committee to supervise the order of interception.
Per Rule 428 of the India telegraphic rules, no person without the sanction of the telegraph authority, use any telephone or cause or suffer it to be used, purposes other than the establishment of local or trunk calls.
The Government of India instructions provide for approved attachments. There is no provision for attachment for recording conversation.
United Kingdom
The Regulation of Investigatory Powers Act 2000 in general prohibits interception of communications by a third party, with exceptions related to government agencies. A recording made by one party to a phone call or e-mail without notifying the other is not prohibited provided that the recording is for their own use; recording without notification is prohibited where some of the contents of the communication—a phone conversation or an e-mail—are made available to a third party. Businesses may record with the knowledge of their employees but without notifying the other party to
- provide evidence of a business transaction
- ensure that a business complies with regulatory procedures
- see that quality standards or targets are being met in the interests of national security
- prevent or detect crime to investigate the unauthorised use of a telecom system
- secure the effective operation of the telecommunications system.
They may monitor without recording phone calls or e-mails that have been received to see whether they are relevant to the business (e.g., to check for business communications addressed to an employee who is away); but such monitoring must be proportionate and in accordance with data protection laws and codes of practice.
Companies that record telephone calls must ensure that their employees can make unrecorded personal calls, if necessary on a telephone on the premises which is not recorded; they may otherwise be in breach of Article 8 of the European Convention on Human Rights.
This summary does not necessarily cover all possible cases. The main legislation which must be complied with is:
Under RIPA unlawful recording or monitoring of communications is a tort, allowing civil action in the courts.
There is a summary of applicable rules on the Oftel website[6] Detailed advice from a solicitor, oriented towards businesses, is available on the Web [7].
United States
In the United States, federal agencies may be authorized to engage in wiretaps by the United States Foreign Intelligence Surveillance Court, a court with secret proceedings, in certain circumstances.
Under United States federal law and most state laws there is nothing illegal about one of the parties to a telephone call recording the conversation, or giving permission for calls to be recorded or permitting their telephone line to be tapped. However, several states (i.e., California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan[8], Montana, Nevada, New Hampshire, Pennsylvania and Washington) require that all parties consent when one party wants to record a telephone conversation. Many businesses and other organizations record their telephone calls so that they can prove what was said, train their staff, or monitor performance. This activity may not be considered telephone tapping in some, but not all, jurisdictions because it is done with the knowledge of at least one of the parties to the telephone conversation. The Telephone recording laws in some U.S. states require only one party to be aware of the recording, while other states require both parties to be aware. It is considered better practice to announce at the beginning of a call that the conversation is being recorded.
There is a federal law and two main types of state laws that govern telephone recording:
Federal law says that at least one party taking part in the call MUST be notified of the recording. (18 U.S.C. 119, Sec. 2511(2)(d)) This means recording a call you are not involved in is illegal throughout the U.S. UNLESS you are a business and the call is occurring on a phone line or extension you are paying for AND the employee has consented to be recorded, i.e. it is illegal to record the phone calls of people who come into your place of business and ask to use the phone unless they are notified.
Two party notification states
Twelve states currently require that BOTH or ALL parties to be notified of the recording. These states are:
- California
- Connecticut
- Florida
- Illinois
- Maryland
- Massachusetts
- Michigan
- Montana
- Nevada
- New Hampshire
- Pennsylvania
- Washington
One party notification states
All other states, and the District of Columbia, besides those listed above require one party consent just as federal law. There are certain exceptions to these rules. See full rules here. According to California court case Kearney v. Salomon Smith Barney, Inc. (July 13, 2006) if you call from a one party notification state into California, then the two party notification law outweighs the one party notification law.
Accepted forms of notification
The FCC defines accepted forms of notification for telephone recording by telephone companies as:
- Verbal or written notification given before the recording is made.
- Verbal notification before the recording is made. (This is the most common)
- An audible beep tone repeated at regular intervals during the course of the call.
Note that the law is NOT worded "consent" but "notification" Notification as the FCC defines
See also Telephone Call Recording Reference- most notably the interpretation of consent vs notification.
Germany
In the meaning above, Germany is a two party consent state. Telephone recording without two or more parties consents is a criminal act according to Sec. 201 to German Criminal Code [1] - violation of the confidentiality of the spoken word. Telephone tapping by authorities has to be approved by a judge. For the discussing about the lawful interception in Germany please see here [2](German language).
References
- ^ "PART VI INVASION OF PRIVACY". Criminal Code ( R.S., 1985, c. C-46 ). Department of Justice Canada. http://laws.justice.gc.ca/eng/C-46/page-5.html#codese:183_1.
- ^ "Canada: Legal Guide On Recording Telephone Conversations". http://www.callcorder.com/phone-recording-law-canada.htm. Retrieved 2008-09-10.
- ^ "Google Answers: Recording calls in Ontario, Canada". 2004-03-25. http://answers.google.com/answers/threadview?id=320423. Retrieved 2008-09-10.
- ^ "Reporters Sans Frontières - Canada - Internet". Internet Under Surveillance. 2004. http://www.rsf.org/article.php3?id_article=10745. Retrieved 2008-09-10.
- ^ UK Regulation of Investigatory Powers Act 2000
- ^ Oftel (UK) FAQ: Recording and monitoring telephone calls or e-mails
- ^ Telephone Monitoring: Dos and Don'ts (UK)
- ^ "Eavesdropping upon private conversation". Michigan Legislature. http://legislature.mi.gov/doc.aspx?mcl-750-539c. Retrieved 2009-10-30.
