One-Party vs. All-Party Consent
Federal law in the U.S. requires only one party to consent to recording or monitoring a telephone conversation. However, the individual states have different laws in this area, and they fall into two categories: those states which also require only one party to consent to record or monitor a call, and those which require the consent of all parties to the call. States with “all-party” consent laws are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.
Arguably, you may not need to undertake any affirmative action to comply with a one-party consent law (as, presumably, you consent to your own recording of the call).
However, there is a great deal of uncertainty in determining which states’ (or countries’) laws could apply, especially because you can never be sure where the other parties to a call are actually located. Therefore, we consider it a best practice to err on the side of caution and to obtain the consent of all parties to a call in all cases (or simply not to record the call).
Please note that these laws apply to merely monitoring a call as well as making an actual recording. So you should follow the same guidelines even if you are using only the monitoring features of Fuze.
What constitutes “consent?”
Generally, if parties to a call are notified in advance that the call is being monitored and/or recorded, they are deemed to have consented if they stay on the line without objection. If a party joins the call after the notice has been given, that party will not be deemed to have consented. It may be desirable to also provide written notice, or to obtain affirmative written consent, in advance if the circumstances permit it.
As mentioned above, we recommend you obtain the necessary consent for monitoring calls as well as recording.
“Ordinary course of business” exception
You may have heard of an “ordinary course of business” exception that may permit call recording/monitoring without consent under specific fact patterns. However, it is rarely certain that this exception will apply. You should be wary of relying solely on an exception to the law if your business utilizes call recording/monitoring features.
The information contained herein is specific to U.S. federal and state laws. The laws in the various jurisdictions outside of the U.S. where we have customers and end-users could differ significantly from those in the U.S. It is the responsibility of our customers to consult with their own lawyers to understand the laws related to call recording and call monitoring in any applicable jurisdiction.
For more general information on this subject, we encourage you to review the FCC’s site at https://www.fcc.gov/consumers/guides/recording-telephone-conversations or the article by Matthiesen, Wickert & Lehrer, S.C. at https://www.mwl-law.com/wp-content/uploads/2013/03/LAWS-ON-RECORDING-CONVERSATIONS-CHART.pdf.
This information is not be construed as legal advice. Fuze recommends you consult your own legal representation before engaging in any call recording or monitoring practices. Fuze is not legally responsible for any actions you may or may not take based on this information.