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Follow up on Can you record calls if you announce that calls are recorded
December 12, 2023
Follow up on Can you record calls if you announce that calls are recorded from article on November 27, 2023
          Listening in and recording telephone conversation was the topic in the article on November 27, 2023.  We know that express consent is required by one or all parties to listen in or records telephone calls or intercept audio by mechanical means.  There seems to be a board consensus that implied consent would satisfy the legal requirement of consent and I stated that I thought there were few cases and no statutes addressing that issue.  K&K had occasion to research the issue of implied consent, at least for one state, and prepared a memo, which I share, in part, below.  Because it has become such common practice to rely on some form of implied consent to satisfy the legal requirements this memo does find authority for implied consent, though what constitutes implied consent remains elusive and subject to speculation and conjecture; more than likely common practice may eventually prove to be the accepted standard, especially if legislation doesn’t address the issue. 
          I still question the sufficiency of posting signs for reasons I have expressed.  I have reservations about the common practice of announcing a call is being recorded and advising the caller to hang up if they don’t like it, unless that announcement provides an alternative way for the consumer to communicate.  While I suppose writing is always an option some warranty or service requests require immediate assistance and written communication may not be efficient.  Providing an alternate phone number that is not recorded or permitting the caller to press a button and turn off the recording, may turn out to be a necessary solution.  Perhaps some calls, such as those common in the alarm industry will eventually be excepted from recording requirements.  In the meantime, safeguarding recorded or intercepted calls and using them for business purposes is the best practice.
          Here’s the memo:
            Alarm companies record telephonic conversations of its customers during daily business operations for the purpose of increasing business efficiency; this memo addresses the legal compliance required to do so.
          What compliance, procedure, and rules are to be adhered to and followed for recording telephonic conversations?
Certain Applicable Laws, Rules, Regulations
Federal law
          Wiretapping and recording laws are applicable at a federal level and state level. Under Federal law, section 2511 of Title 18 prohibits the unauthorized interception, disclosure, and use of wire, oral, or electronic communications unless one of the parties to the communication has given prior consent. This means under federal law it is illegal to record any oral, telephonic, or electronic communication unless one of the parties to the conversation consents to the recording of it.  
          Federal law requires the consent of only one of the parties to a conversation to record it. Therefore, the party recording the call itself may provide the consent without notifying the other party that the call is being recorded. This is known as “one-party” consent.
State law.
          Most states have enacted laws that are similar to the federal statute, and require one-party consent. However some states require “all party” consent which means in order to record a call, the recording party must get the consent of all parties to the conversation.
          Pennsylvanian's Wiretap Act makes it illegal to record a telephonic conversation, subject to certain exceptions. Under Pennsylvania law, a person is guilty of a felony if he or she intentionally intercepts any wire, electronic or oral communication.
          Consent is an exception to the general rule that prohibits the recording of a telephonic conversation. Pennsylvania is an “all-party consent” state. This means in order to record a call, in Pennsylvania a party must get the consent of all the parties to the conversation before the conversation can be recorded or face criminal penalties.
          On the issue of what is considered consent courts have specified that the consent required in order to record a conversation need not necessarily be express or explicitly given and may be implied by the conduct of the party.  
          In Commonwealth v. Byrd, 235 A.3d 311 (Pa.2020) the court held that consent can be demonstrated when the person being recorded knew or should have known that they are being recorded. The court clarified that the focus is not subjective knowledge before speaking; rather, the standard is the objective knowledge of a reasonably intelligent person following a warning that the call "may be monitored or recorded”. After receiving such warning, proceeding to speak into the receiver is consent by conduct and therefore, the recording of such interceptions are not unlawful.
          Recording telephonic conversations of customers after informing them that their calls are being recorded is legal and sufficient in Pennsylvania. This is because based on the abovementioned case law, by proceeding to speak into the receiver after a customer receives a warning of the call being recorded, he provides consent by conduct.   
Benasz Hansotia  
admitted in India; admission pending in NY
Kirschenbaum & Kirschenbaum PC

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301