Telephone recording laws
Encyclopedia
Telephone recording laws are laws that govern the civilian recording of telephone conversations
by the participants (as opposed to laws controlling government or law enforcement wiretapping).
Telephone tapping is officially strictly controlled in many countries to safeguard an individual's privacy
; this is the case in all developed democracies
. In theory, telephone tapping often needs to be authorized by a court
, and is, again in theory, normally only approved when evidence
shows it is not possible to detect criminal or subversive activity in less intrusive ways; often the law and regulations require that the crime investigated must be at least of a certain severity. In many jurisdictions however, permission for telephone tapping is easily obtained on a routine basis without further investigation by the court or other entity granting such permission. Illegal or unauthorized telephone tapping is often a criminal offence. However, in certain jurisdictions such as Germany
, courts will accept illegally recorded phone calls without the other party's consent as evidence.
It is in general not legal to tape conversations in a court room.
Recording of calls by a company or an employer is subject to data protection legislation and, as a general rule, requires informing the participants prior to recording.
The Central Government or State Government is empowered to order interception of messages per section 5 of Indian Telegraph Act 1885. Rule 419 and 419A sets out the procedure of interception and monitoring of telephone messages. There is a provision for a review committee to supervise the order of interception. Phone tapping is permitted based on Court order only and such permission is granted only if it is required to prevent a major offence involving national security or to gather intelligence on anti-national/terrorist activities. Though economic offences/tax evasion were initially covered under the reasons for interception of phones, the same was withdrawn in 1999 by the Government based on a Supreme Court order citing protection to privacy of the individual.
As per Rule 428 of the India telegraphic rules, no person without the sanction of the telegraph authority, use any telephone or cause or suffer it to be used, purposes other than the establishment of local or trunk calls.
The Government of India instructions provide for approved attachments. There is no provision for attachment for recording conversation.
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
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:
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 Detailed advice from a solicitor
, oriented towards businesses, is available on the Web.
, federal agencies may be authorized to engage in wiretaps by the United States Foreign Intelligence Surveillance Court
, a court with secret proceedings, in certain circumstances.
Under United States federal law and most state laws there is nothing illegal about one of the parties to a telephone call recording the conversation, or giving permission for calls to be recorded or permitting their telephone line to be tapped. However, several states (i.e., California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington) require that all parties consent when one party wants to record a telephone conversation.
Many businesses and other organizations record their telephone calls so that they can prove what was said, train their staff, or monitor performance. This activity may not be considered telephone tapping in some, but not all, jurisdictions because it is done with the knowledge of at least one of the parties to the telephone conversation. The Telephone recording laws in some U.S. states require only one party to be aware of the recording, while other states require both parties to be aware. It is considered better practice to announce at the beginning of a call that the conversation is being recorded.
There is a federal law and two main types of state laws that govern telephone recording:
Federal law requires that at least one party taking part in the call must be notified of the recording (18 U.S.C. §2511(2)(d)). For example, it would be illegal to record the phone calls of people who come into one's place of business and ask to use the phone, unless they are notified.
Illinois courts have ruled that "eavesdropping" only applies to conversations that the party otherwise would not have been able to hear, thereby effectively making it a one-party consent state. However, there still appears to be confusion and debate over the law.
If a caller in a one-party state records a conversation with someone in a two-party state that caller is subject to the stricter of the laws and must have consent from all callers (Cf. Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95 (2006)).
Note that the law re: verbal is not worded "consent" but "notification" Notification as the FCC defines
Telephone tapping
Telephone tapping is the monitoring of telephone and Internet conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitoring connection was an actual electrical tap on the telephone line...
by the participants (as opposed to laws controlling government or law enforcement wiretapping).
Telephone tapping is officially strictly controlled in many countries to safeguard an individual's privacy
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
; this is the case in all developed democracies
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
. In theory, telephone tapping often needs to be authorized by a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
, and is, again in theory, normally only approved when evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
shows it is not possible to detect criminal or subversive activity in less intrusive ways; often the law and regulations require that the crime investigated must be at least of a certain severity. In many jurisdictions however, permission for telephone tapping is easily obtained on a routine basis without further investigation by the court or other entity granting such permission. Illegal or unauthorized telephone tapping is often a criminal offence. However, in certain jurisdictions such as Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, courts will accept illegally recorded phone calls without the other party's consent as evidence.
Canada
Canadian law requires that at least one party in the phone call be aware of the recording. you have to also look at the Personal Information Protection and Electronic Documents Act (Canada) aka PIPEDA, the Personal Information Protection Act (Alberta), the Personal Information Protection Act (British Columbia) and an Act Respecting the Protection of Personal Information in the Private Sector (Quebec).Denmark
Calls and conversations may be recorded by any active participant. There is no requirement to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws.It is in general not legal to tape conversations in a court room.
Finland
In the case of private persons, calls and conversations may be recorded by any active participant. There is no requirement to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws, such as data protection (privacy) legislation, libel laws, laws governing trade and national secrets, and any agreements, such as non-disclosure agreements.Recording of calls by a company or an employer is subject to data protection legislation and, as a general rule, requires informing the participants prior to recording.
India
In India, telephone tapping has to be approved by a designated authority. It is illegal otherwise.The Central Government or State Government is empowered to order interception of messages per section 5 of Indian Telegraph Act 1885. Rule 419 and 419A sets out the procedure of interception and monitoring of telephone messages. There is a provision for a review committee to supervise the order of interception. Phone tapping is permitted based on Court order only and such permission is granted only if it is required to prevent a major offence involving national security or to gather intelligence on anti-national/terrorist activities. Though economic offences/tax evasion were initially covered under the reasons for interception of phones, the same was withdrawn in 1999 by the Government based on a Supreme Court order citing protection to privacy of the individual.
As per Rule 428 of the India telegraphic rules, no person without the sanction of the telegraph authority, use any telephone or cause or suffer it to be used, purposes other than the establishment of local or trunk calls.
The Government of India instructions provide for approved attachments. There is no provision for attachment for recording conversation.
Latvia
Calls and conversations by private persons may be recorded by any active participant. There is no requirement in laws to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws.United Kingdom
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-mailE-mail
Electronic mail, commonly known as email or e-mail, is a method of exchanging digital messages from an author to one or more recipients. Modern email operates across the Internet or other computer networks. Some early email systems required that the author and the recipient both be online at the...
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 in the interests of national security
- prevent or detect crime to investigate the unauthorised use of a telecom system
- 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 2000Regulation of Investigatory Powers Act 2000The Regulation of Investigatory Powers Act 2000 is an Act of the Parliament of the United Kingdom, regulating the powers of public bodies to carry out surveillance and investigation, and covering the interception of communications...
("RIPA") - Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 ("LBP Regulations")
- Data Protection Act 1998
- Telecommunications (Data Protection and Privacy) Regulations 1999
- Human Rights Act 1998Human Rights Act 1998The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
Under RIPA unlawful recording or monitoring of communications is a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
, allowing civil action in the courts.
There is a summary of applicable rules on the Oftel website Detailed advice from a solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
, oriented towards businesses, is available on the Web.
United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, federal agencies may be authorized to engage in wiretaps by the United States Foreign Intelligence Surveillance Court
United States Foreign Intelligence Surveillance Court
The United States Foreign Intelligence Surveillance Court is a U.S. federal court authorized under , . It was established by the Foreign Intelligence Surveillance Act of 1978 . The FISC oversees requests for surveillance warrants against suspected foreign intelligence agents inside the United...
, a court with secret proceedings, in certain circumstances.
Under United States federal law and most state laws there is nothing illegal about one of the parties to a telephone call recording the conversation, or giving permission for calls to be recorded or permitting their telephone line to be tapped. However, several states (i.e., California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington) require that all parties consent when one party wants to record a telephone conversation.
Many businesses and other organizations record their telephone calls so that they can prove what was said, train their staff, or monitor performance. This activity may not be considered telephone tapping in some, but not all, jurisdictions because it is done with the knowledge of at least one of the parties to the telephone conversation. The Telephone recording laws in some U.S. states require only one party to be aware of the recording, while other states require both parties to be aware. It is considered better practice to announce at the beginning of a call that the conversation is being recorded.
There is a federal law and two main types of state laws that govern telephone recording:
Federal law requires that at least one party taking part in the call must be notified of the recording (18 U.S.C. §2511(2)(d)). For example, it would be illegal to record the phone calls of people who come into one's place of business and ask to use the phone, unless they are notified.
All-party notification states
Eleven states currently require that all parties consent to the recording. These states are:- California
- Connecticut
- Florida
- Illinois (debated, see next section)
- Maryland
- Massachusetts
- Montana
- Nevada
- New Hampshire
- Pennsylvania
- Washington
One-party notification states
All other states (and the District of Columbia) not listed above require only that one party consent. Michigan's eavesdropping statute seems to put it into the two-party category, but the courts have ruled that in Michigan, a party may record their own conversation without the consent of any other parties but cannot grant that right to a third party. There are certain exceptions to these rules. See full rules here.Illinois courts have ruled that "eavesdropping" only applies to conversations that the party otherwise would not have been able to hear, thereby effectively making it a one-party consent state. However, there still appears to be confusion and debate over the law.
If a caller in a one-party state records a conversation with someone in a two-party state that caller is subject to the stricter of the laws and must have consent from all callers (Cf. Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95 (2006)).
Accepted forms of notification for recording by a telephone company
The FCC defines accepted forms of notification for telephone recording by telephone companies as:- Prior verbal (oral) or written consent of all parties to the telephone conversation.
- Verbal (oral) 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.
Note that the law re: verbal is not worded "consent" but "notification" Notification as the FCC defines
Germany
In the meaning above, Germany is a two party consent state. Telephone recording without the consent of the two or, when applicable, more parties is a criminal offence according to Sec. 201 of the German Criminal Code http://www.iuscomp.org/gla/statutes/StGB.htm#201 - violation of the confidentiality of the spoken word. Telephone tapping by authorities has to be approved by a judge. For discussion on lawful interception in Germany please see :de:Telefonüberwachung(German language).External links
- FCC Consumer facts on recording calls
- Privacy Rights Clearinghouse / UCAN
- The Reporters Committee for Freedom of the Press article on telephone recording laws by state
- California courts document on Kearney v. Salomon Smith Barney, Inc.
- Federal law 18 U.S.C. 119, Sec. 2511(2)(d)
- Comprehensive Telephone Law Recording Reference