United States Law

Questions surrounding the legality and best practices for audio monitoring are some of the most common inquiries we receive from our customers. Here’s what you need to know.

Title 18, United States Code, Chapter 119, Section 2511(2)(III)(D) states:

“It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception…”

36 states and Washington D.C. employ “one-party” consent laws. If you are a party to the conversation, then you are able to record it. If not, then you will need the consent of one party in the conversation to record it.

15 states employ “all-party” consent laws. This requires all parties involved in the conversation to consent to recording.

Lawful Monitoring: It is lawful to monitor verbal communications when prior consent is given. Consent indicates there is no expectation of privacy.

Expectation of Privacy: In public places, signage stating audio surveillance is taking place removes the expectation of privacy.

Implied Consent: If someone chooses to remain in a public place with signage communicating the area is monitored with audio surveillance, that is considered implied consent.

Federal and state laws differ as to the legality of recording phone calls and conversations. Determining which jurisdiction’s law controls in cases involving recording devices or parties in multiple states can be complex, so it is likely best to adhere to the strictest applicable law when in doubt, and/or get the clear consent of all parties before recording. 

Federal Law

Federal law (18 U.S.C. § 2511) requires one-party consent, which means you can record a phone call or conversation so long as you are a party to the conversation. If you are not a party to the conversation, you can record a conversation or phone call only if at least one party consents and has full knowledge that the communication will be recorded. The statute also prohibits recording conversations with criminal or tortious intent. 

State Law

Most states have enacted laws that are similar to the federal statute, meaning that they generally require one-party consent (click each state to see the details below). 

Note that in many states, consent requirements only apply in situations where the parties have a reasonable expectation of privacy (e.g. not in a public place). Further, what constitutes “consent” in a given jurisdiction can vary in terms of whether it must be express or can be implied based on the circumstances.
Source: https://www.justia.com/50-state-surveys/recording-phone-calls-and-conversations/

Lawful Monitoring

U.S.C. 18, Chapter 119, Sec. 2511(d)

• It is not unlawful to monitor oral communication when
  prior consent is given
• Consent may be express or implied

Expectations of Privacy

There cannot be an expectation of privacy if there are public signs posted indicating the communication is being monitored

Implied Consent

Given through facts, actions, or even by silence

Reasonably understood that consent is inferred

It is expected an objecting person is supposed to behave or respond in a certain manner

Know state and local laws where the technology is applied

Legal Compliance

Responsibility in the application of the law

• Owner, installer, integrator, resellers, and distributors

Resources

U.S. Federal Law

• http://codes.lp.findlaw.com/uscode/18/I/119/2510

State Laws

• www.ncsl.org/default.aspx?tabid=13492
• https://www.rcfp.org/reporters-recording-guide/

Caveat

The information in this presentation is based on the interpretations and opinions of the author and is for Industry information purposes. This is NOT legal advice. Do not rely solely on this information without verifying with your legal counsel/attorney.

THE FEDERAL LAW AS IT PERTAINS TO AUDIO MONITORING

United States Code, Title 18, Section 2510(2) regarding rights of privacy:

“Oral communication means any “oral communication” uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstance justifying such expectation.”

Section 2511 (2)(d) goes further:

“It shall not be unlawful [under this chapter] for a person…to intercept…oral…communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception…”

A person does not have an expectation of privacy if there are public signs posted giving clear indication that the communication is being monitored. Implied consent is valued as is explicit permission.

Posting of signage, a disclaimer, on the public entrances and exits, notifying all that “Audio Monitoring on These Premises” in effect, assists entities to comply with United States Code regarding notice and rights of privacy. Louroe provides signage that we recommend be clearly posted. There are other, meaningful ways to provide awareness, such as employee handbooks, patient consent forms, and school registration, to name a few.

Each State in the U.S. has adopted statutes that are based on the Federal law. It is important for qualified distributors / resellers of audio monitoring technology that they not rely solely on the above information, and to verify the above with knowledgeable legal counsel in the location where the technology is planned to be deployed.

Federal Law References:
US Code, Title 18. Sec. 2510.