Important not-a-lawyer advice: recording phone calls without the other party's consent is illegal in wide swathes of the U.S., but keeping copies of letters is legal everywhere.
Question: When the party states that "this call may be recorded for quality or training purposes", does that give you reciprocal permission to record the call or do you have to explicitly ask for it?
IANAL, but if you live in a two-party (all-party?) consent state, its only illegal if you don't tell them. You can do exactly what they do: prefix your call with "this call is being recorded for my records".
Remember, your goal isn't to secretly pull out a recording that proves they're lying while in court. You don't want to go to court at all. To that end, you want them to know you're keeping a paper (or virtual paper) trail. So tell them.
The problem is, what if they hang up? They have an unfair advantage here since they can refuse to consent to your recording, but you can't do the same thing. (I mean, you can, but then they're holding whatever you need to get done hostage.)
(a) Are they obligated to handle anything that they would handle over the phone via a letter too? I don't feel like many companies would be willing to do this.
(b) What if they just do all the typical customer service BS on the phone over snail mail? People spend hours or even days with a lot of back-and-forth to get non-routine stuff sorted out... if you do that over snail mail it could easily take many months to do things right. Not exactly practical, especially when you have a deadline coming up and it passes during this back-and-forth mailing.
I guess the answer is in many ways contained in the blog post.
Is there any legal regulation or contract compelling them to respond to you? If so, use that as leverage. If there is not, you may not be able to compel them to do what you want.
Alternatively, I wonder something else: When they say "this call may be recorded" could you legally interpret "may" to mean as giving you permission, rather than as "might be recorded"?
It would seem like they might have a hard time arguing "this call may be recorded for quality purposes" doesn't imply that you may (= can) record the call for quality purposes.
What if I said "I am recording this call" while I am in an Automatic Voice Response system waiting for an human to arrive on the line and talk to me?
As far as I am concerned, human representative or the automated voice response system, both represent the company that I am interacting with. It's not my fault that the voice response system that the company used to talk to me (to answer my questions, or just make me wait) can't understand that I am going to record the call and act appropriately. The business is perfectly fine with using the automated system to take critical actions, then it should be fine with me telling it I will be recording the call, not my fault that their automated system failed to recognize that.
Well, when I used to work in a call center we were instructed to just keep repeating "I do not consent to your recording this call" or something to that effect until they said they stopped or they hung up.
Truth. I once happened to be in a hearing where the judge got the idea that the plaintiff's attorney might be jerking him around. It was an impressive display of wrath. Along with crocodiles and bears, federal judges are now on my "definitely do not fuck with" list.
Playing semantics games is almost guaranteed to piss off the judge. Pissed off judges are not nice.
It's a very long-winded story, so I will try for the short version. Courts default to being open to the public. You can go down and watch them. Chances are, you can even make use of a law library.
Anyhow, this is sort of a hobby of mine. I know, I'm a strange person - but I love watching the court. Like I said, it's a long story.
I think my favorite was a guy who was in district court and argued with the judge about the definition of marijuana and the word possession. Now, the judge was pretty polite and told them that they were trying to give them a very small fine.
The kid persisted and had no idea about procedure. I mean, he could have argued those things but there's a procedure. Procedure is very, very important to judges. Seriously, they love proper procedure so much that they will even tell you what you need to do. She tried to explain this to the kid.
But no, he persisted and tried to fake his way into appearing to be a legal scholar. Again, this was district court.
Suffice to say, he kept going before finally admitting guilt and she gave him the maximum fine and just until the end of the day to pay that fine. At which point he decided it was time to double down and refuse to recognize the court - though not as one of those sovereign citizen things.
I'm not sure what the end result was, but he was taken into custody by the court officers. The rest of the day went quite smoothly.
The best part of this story? He had the chance to speak with the DA prior to this and the State provides an attorney of the day. He took advantage of neither one.
If I tell someone "my nose may be touched" then I'm allowing them to touch my nose.
If I tell someone "this call may be recorded", then surely I'm giving them permission to record the call. Their ability to detect my lies seems to be a reasonable "quality" purpose.
You would be intentionally conflating two different definitions of the homograph "may" (i.e. permission "you are allowed to X" versus possibility "X might happen").
You could argue that "any reasonable person" would have interpreted the "may" in that statement as giving you permission to record the call for training purposes (as opposed to letting you know that your call might be recorded for training purposes), but I wouldn't want to be in you shoes when you try.
Just tell them that you're recording the call too, and sidestep the issue entirely.
As a maverick not a lawyer, it's worth noting that what this means in practice is that evidence of a crime obtained by illegally recording a telephone conversation may not be admissible in court. I say may not be because a judge could decide to allow the evidence if the alleged crime is sufficiently serious.
It's extraordinarily unlikely a criminal or civil case will be brought against you because you revealed to a company that you recorded a support call to them, especially if the content of those calls reveals impropriety on their behalf.
What probably would be a problem is if you recorded a telephone conversation with the intent to, or actually causing, harm.
At least, that's my lay understanding of how things might go.
How do you record the consent itself? Or is it going to be a case of he said/she said? I'd assume you'd need proof that you had asked for consent prior.
Because you can hang up if you aren't. Additionally, I imagine upon reaching an individual immediately stating you do not consent to being recorded will likely trigger the appropriate outcome.
If you're entering into an actual contract verbally (e.g. applying for insurance or a mortgage over the phone), they'll typically go out of their way to ask if you're okay with the recording. They don't want even the slightest admissablility issue, and they want you to know you're giving a binding verbal signature.
If you're just talking to a low-level customer support rep, the stakes are a lot lower.
I suppose using a call recording device for a fixed line telephone, or an app for a smartphone.
> I'd assume you'd need proof that you had asked for consent prior.
My point is: even if you neglect to ask for consent, no company is going to sic their lawyers on you if you play back to them a call recording that proves they lied and therefore failed to meet their contractual obligations.
Edit: Oh, sorry, I see what you mean now about recording consent. You start by recording the call by default, if the other party requests the call not be recorded you cease recording. It would probably be okay to retain that portion of the recording.
I wonder if this law still makes sense. I feel it could be altered to say that recording someone without them even knowing you are listening should be illegal, but I don't see why it should be illegal to record a consenting conversation between two people.
Generally the laws on video recording are based on where the camera operator is standing while filming. If you have a lawful right to be where you are, it's probably ok to make a video. But take a look at the facts in Shulman v. Group W Production, Inc. (1998) 18 Cal. 4th 200, where the camera crew was lawfully present but intruded on a private encounter. Very much depends on context, at least in California.
>Once AT&T, or anyone else for that matter, states that the communication is being recorded, it is no longer considered a confidential communication requiring the consent of all parties in order for any party to record it.
Yes, check your states laws. Some states are two-party consent, but a good number are one-party consent states. And in a one-party consent state you recording yourself is legal without the other parties knowledge because you gave your consent to make the recording of yourself.
Due to getting a new cell phone number that apparently once belonged to a deadbeat I know nothing about, I got a large number of debt collector calls. I wish I had a good way to get their address and record who is calling.
The only problem is that they all ask for <name>, give me no information about themselves, and hang up right away. I blocked a lot of them, but there's no good way to make that go away.
The federal Telephone Consumer Protection Act (47 USC 227) says that each of these calls is worth $500 minimum in statutory damages -- and may be trebled to $1500 per call if shown to be willful. Assuming you live in the US, this is a great case and you should keep track of the calls.
Problem is that they never identify themselves, they just say "we're looking for [xyz]" and hang up when I say I'm not them. I can't keep them on the call and the caller ID is faked to be some random local number.
