The below article covers only the United States and Canada. For additional information on local call recording laws and regulations, please refer to this Wikipedia article.
Federal Consent Requirements
Federal law requires only one-party consent, which means that one party to the conversation must have knowledge and give consent to the monitoring or recording. Federal law applies only in those states which do not have a call monitoring or recording statute.
State Consent Requirements
State laws vary between one-party and all-party (also referred to as two-party) consent. In the all-party consent states, before monitoring or recording may commence all parties participating in the call must give their consent, or otherwise be notified that the call may be monitored or recorded (with a necessary opt-out option: if one party does not want the other to record or monitor the call, they can ask them to stop, or can terminate the call). It is important to note that this consent must be obtained at the onset of the call, and before any such monitoring or recording begins.
When calling between two differing states (with one being a one-party state and the other a two-party state), the most restrictive law will usually apply.
As a best practice, however, you should always obtain consent from all parties on a telephone call prior to beginning monitoring or recording.
We suggest the following sample verbal notification at the beginning of each call where recording or monitoring may occur:
This call may be monitored and recorded for record-keeping, training and quality-assurance purposes.
Telephone recordings are governed by federal law and by mainly two types of state laws:
Two-party consent states
States that currently require that all parties consent to the recording include:
- Hawaii (in general a one-party state, but requires two-party consent if the recording device is installed in a private place)
- Illinois (except for electronic communications, see next section)
- Massachusetts (only "secret" recordings are banned, but is the only state without a "public location" exception)
- Montana (requires notification only)
- New Hampshire
- Washington (however, section 3 of the Washington law states that permission is given if any of the parties announces that they will be recording the call in a reasonable manner if the recording contains that announcement).
One-party consent states
Other states (and the District of Columbia) not listed above require only that one party consent to the recording.
One Party Consent States
- District of Columbia
- Illinois (One party for private electronic communications only)
- Michigan (One party only if the recording party is a participant in the conversation)
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Oregon (One party for electronic communications, two party for in-person conversations)
- Rhode Island (Although consent is not required when the recorded party does not have a reason to expect privacy)
- South Carolina
- West Virginia
- Wisconsin (Two party consent required to be used in court)
In Canada, organizations subject to the Personal Information Protection and Electronic Documents Act (PIPEDA) must comply with PIPEDA when recording calls.
In order to comply with the PIPEDA, organizations should take the following steps when recording conversations:
- The individual must be informed that the conversation is being recorded at the beginning of the call. This can be done by an automated recording or by the customer service representative.
- The individual must be advised of the purposes. The organization must be clear about the purposes; an organization should not state that it is recording the conversation for quality assurance purposes if, in fact, the recording will be used for other purposes. Informing the individual of the purposes can be done in a variety of ways—verbally, by pressing a number on the keypad (in the case of automated messages) or with clear messages on monthly statements. (For example: If you have any questions about your bill please call 1-800-XXX-XXXX. Please note your call will be recorded for...) If the individual proceeds knowing the conversation is being recorded and the purpose of the recording, consent is implied.
- If the caller objects to the recording, the organization should provide the caller with meaningful alternatives. The alternatives might involve not taping the call; visiting a retail outlet; writing a letter; or, conducting the transaction over the Internet.
An individual may record a call as long as he or she is one of the participants of the call. The recording can be used as evidence in a lawsuit.
However, it is illegal to record communications that the recording party is not participating in. An illegal recording can lead to a sentence of up to five years in prison. Section 183 (Part VI) of the Criminal Code also outlaws surreptitious recording of communications without consent of one of the intended recipients.