A recent question I was asked raises an interesting misconception about audio laws I think is common among those in the alarm business. Here is what was shared with me: “Our state is a two-party consent location in that both parties need to be aware a phone call is being recorded. On incoming calls our system announces the call may be recorded, and on outbound our operators inform the person they are speaking with the call may be recorded. A few customers have complained about constantly being informed the call may be recorded. In such cases, is it possible to have them sign off on this fact? The monitoring contract’s consent only covers us with the individuals named on the contract, correct? Could it cover each individual in the business we may speak to and record or anyone on an owner-provided contact list who wouldn’t know the calls are being recorded?”
This states that parties to the call need to be “aware.” So you would think that in a one-party state only one party would need to know about the recording, and in an all-party state all parties would need to know. To satisfy this requirement, I believe most in the industry rely on announcements and repeated beeps. The problem, as I see it, is that the audio statutes don’t use the word “aware.” For the most part I believe the statutes use the word “consent.” I am not aware of any statute that explains providing notice, such as beeping or announcements, constitutes consent if the other party remains on the line. Courts may very well have interpreted this as “implied” consent, but I haven’t researched this and of course unless the statute is clear and addresses the issue (which I don’t think they do), you take a chance each time a judge has to consider the issue.
So how do you get consent and how often do you need to get it? Can an employer give consent on behalf of all of the employer’s employees? If your subscriber gives you a call list, do you need consent from everyone on the list or can the subscriber consent for them?
All Standard Form Contracts provide for consent to recording, and make clear that the central station owns the recordings. The consent covers only the subscriber. Arguably an employer can consent on behalf of the employees so long as the recorded call relates to the employers business and the employees duties. It’s doubtful that a subscriber can name someone on the call list and consent on behalf of that person. The most prudent approach would be to have anyone on the call list sign a consent form, as impractical as this may be.
I suggest refocusing the concern. The problem that may arise is not the recording, but how it’s used. Security companies and monitoring providers should update their employee handbooks to make sure their people understand the recordings are confidential. Every employee should sign an employment agreement that provides for their consent to the recording.
Then stop the announcements; they are not effective unless consent is requested and obtained. A statement that there is recording is not consent and at best you may obtain implied consent that way. If you are going to make announcements, the most appropriate one is, “I am recording this call. Is that OK with you?” If a person declines consent your operator can say what needs to be said and then promptly hang up. I don’t think any alarm company is going to risk civil or criminal exposure for recording an appropriate business call without providing the requisite notice.
Ken Kirschenbaum has been a recognized counsel to the alarm industry for 35 years and is principal of Kirschenbaum & Kirschenbaum, P.C. (www.kirschenbaumesq.com). His team of attorneys, which includes daughter Jennifer, specialize in transactional, defense litigation, regulatory compliance and collection matters. The opinions expressed in this column are not necessarily those of SSI, and not intended as legal advice.