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Setting the Record Straight on Recording

Before you record that phone conversation, read this.

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An Ohio-based reader writes in asking about the legalities of recording conversations of a security company’s own employees and customers, as well as, by extension, those of the customer themselves. According to the reader: “In Ohio, just one party in the conversation must know about it; if consent is granted then all is good; and reasonable expectation of privacy does not pertain to restaurants, public places or your door step.” Let’s consider Ohio specifically as well as other areas to assess the validity of these assertions.

First of all, you should get your employees to consent to listening or recording conversations, on the phone or otherwise, in their Employment Contract. You can then listen in or record telephone conversations with your employees and others in one-party consent states. You shouldn’t listen in or record conversations with someone in an all-party state without consent of that party.

How do you get consent? Unless the statute specifies that the consent must be in writing you can obtain consent by explaining the call is being listened to or recorded and continued conversation constitutes consent. This should be explained. Beeping alone would not convey the same disclosure and would not likely constitute consent just because the person continued to talk through the beeping.

I am not sure where the above quoted language about restaurants came from, but I don’t agree with it. Expectation of privacy, it seems to me, is not something that doesn’t change depending on the circumstances. It is true that statutes identify certain areas where there should not be any confusion about privacy expectation: bathrooms, bedrooms, dressing rooms. Other areas, particularly public areas, suggest that privacy is not expected. But, we are not all in the CIA or other clandestine agencies trained to maintain secrecy and circumvent detection.

Two people in a restaurant having an intimate conversation may very well expect privacy. Perhaps not if they are talking loudly or yelling at each other, but what if they are clearly attempting to keep their conversation discrete and private? Now consider how that “private” conversation becomes public. Someone is sitting near enough to the table to hear the conversation and later repeats it. I think this would not violate the audio law. However, if the interception of the conversation is by a mechanical device, a recorder, I think it would violate the audio law. And, in my opinion, here is the transgression that I think does make it a violation of the audio statute.

Here is an excerpt from the Ohio audio law, which you can read at: “(4) A person who is not a law enforcement officer and who intercepts a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given the person prior consent to the interception, and if the communication is not intercepted for the purpose of committing a criminal offense or tortious act in violation of the laws or Constitution of the United States or this state or for the purpose of committing any other injurious act.”

Why was the interception made and what was done with the overheard or recorded audio? If the purpose of the interception is criminal or tortious then it’s wrong. Keep in mind that violation of civil rights can be both criminal and tortious, giving rise to civil monetary damages. Thus, I conclude that you can’t use the audio for malicious purposes.

It’s a good idea to include in your contract description of services that you’ve advised your subscriber that all audio and video devices should be used in a lawful manner. 

Ken Kirschenbaum has been a recognized counsel to the alarm industry for 35 years and is principal of Kirschenbaum & Kirschenbaum, P.C.. 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.

Article Topics
Business Management · Ken Kirschenbaum · Legal Advice · Legal Briefing · Legal Issues · Recording Conversations · All Topics

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Ken Kirschenbaum, Legal Advice, Legal Briefing, Legal Issues, Recording Conversations

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