Call Recording Overview

The information herein is public domain general information concerning UK and USA call recording laws.

To help our customers understand the legal implications of Call Recording within their juristriction we have provided the following information which is provided to assist businesses in configuring their CloudCall service appropriately to remain in compliance with the relevant laws.

Call Recording provides businesses with great tools to improve productivity, customer service and training. Our CloudCall services (Click, Enterprise and Contact Centre) includes the ability to record calls which can be switched on an off per user account in a variety of configurations.

We cannot be held responsible for incorrectly configured services which contreve local laws. We strongly recommend you also seek independent legal advice.

To assist our customers we also provide the tools to allow our customers to configure their user accounts to be compliant with various jurisdictions including Country and State laws that exist. It is the customers responsibility to ensure their service is configured and is operating correctly in line with the relevant laws.

UK Call Recording Laws

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,
  • protect national security,
  • prevent or detect crime,
  • investigate the unauthorised use of a telecommunications system, or
  • 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.

This summary does not necessarily cover all possible cases. The main legislation which must be complied with is:

  • Regulation of Investigatory Powers Act 2000 (“RIPA”)[13]
  • Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (“LBP Regulations”)[14]
  • Data Protection Act 1998
  • Telecommunications (Data Protection and Privacy) Regulations 1999[15]
  • Human Rights Act 1998
  • 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[16] Detailed advice from a solicitor, oriented towards businesses, is available on the Web.[17]

Recording is sometimes advised, as in recording business transactions carried out by telephone to provide a record. It is sometimes mandatory; from March 2009 Financial Services Authority rules required firms to record all telephone conversations and electronic communications relating to client orders and the conclusion of transactions in the equity, bond, and derivatives markets.[18] In November 2011 this was extended to cover the recording of mobile phone conversations that related to client orders and transactions by regulated firms.

USA Call Recording Laws

A brief overview of U.S. state and federal laws

One or two party consent

In the U.S. the individual states have different laws concerning telephone recording. These fall into two categories: Two party notification, and One party notification. Two party notification means both parties being recorded in a conversation must consent. One party notification only requires one of the parties being recorded to consent. Consent is usually granted by an notification recording at the beginning of the call, or with a audible beep tone. The recent California Supreme Court decision in Kearney v. Salomon Smith Barney, Inc., S124739 (July 13, 2006) showed that in a call from a One party consent state to a Two party consent state the Two party law takes precedence.

Which states have two party consent laws?

States with two party consent laws are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. All other states have one party consent laws, but even if your company resides in a one party consent states, if it might make calls to two party consent states it should either provide notification to both parties or not record these calls.

Telephone recording in businesses

Federal law requires the notification of at least one party in a call (18 U.S.C. Sec. 2511(2)(d)). However there is a “business telephone” exception that allows employers to record calls on phones they provide to employees.

What is needed to get “consent?”

The FCC defines the methods that can be used to obtain consent as:

  • Verbal or written consent 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.

Using recordings as legal evidence

One of the top uses of telephone recorders in business is to deter or protect against lawsuits. To do this the consent laws must be observed particular to the state called from and called to. Due to interpretation and exceptions particular to individual states the safest course of action is to get consent from both parties by giving verbal notification at the beginning of the call or having an audible beep tone.

Additional Call Recording Permissions Information

The following resource information may be useful although we do not validate the accuracy of this information:

Disclaimer

  • CloudCall Group Plc., and its subsidiaries (CloudCall Ltd and CloudCall Inc.), is not dispensing any legal advice nor does it profess the accuracy of the information provided. If you have questions concerning legal implications of the following information, specific issues related to call recording, how these issues apply in particular states or the legal ramifications of the use of this service, you should contact an attorney for advice. CloudCall is not legally responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of call recordings or the use of its services by a purchaser or other party whether legal or illegal. It is your responsibility to acquaint yourself with the proper knowledge for legal use of these services.
    • Responsibility for compliance with US call recording laws rests with the customer, not CloudCall.
    • CloudCall software is delivered with call recording fully switched off as the default position.
    • CloudCall call recording has been designed with a set of inbuilt tools to help a customer to achieve legal compliance. These tools can be applied at account level and configured by the customer to meet the legal requirements that might apply.
    • Additionally, to help our customers understand the legal implications, we have included this collateral on our web-site, which is free to our US and UK customers, but does not constitute legal advice. We are simply sharing the results of our own research.