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More on announcing calls you are recording 
December 29, 2023
More on announcing calls you are recording from article on November 27, 2023
          What about this situation?
          We use the internet to make calls Voice Over Internet Protocol (VOIP); phone system of the times.  The voice on one end is basically recorded as data packets and sent through the internet where it is re-assembled at the other end. Every computer, switch, AI router, etc. etc. saves a copy of this data until purged. The VOIP call can also be captured to a hard drive by entering a simple command into the Smart or AI switch using SPAN Switched Port Analyzer. On a Cisco system this can be activated on a per phone basis. If the VOIP phone has SPAN activated the Administrator can designate a network location to store all incoming and outgoing calls made from that particular phone.
          In short a VOIP call must be recorded to be transmitted, unlike POTS. 
POTS lines work with the electrical pulses generated through the mouth piece onto the wires directly through the hardwired switch network to the pairs of wires designated to the recipient. 
          To tap a POTS line one needs to know the exact pair of wires to splice onto.
With VOIP the calls are multicast to whoever says that's me; however every switch router and server along the way stores the data and can be accessed by anyone with access to the network and knowledge to SPAN it out.
          Thanks to the FCC and the phone companies pushing all communications onto the internet it has never been easier to tap a phone line, all one needs is the IP address and some freeware provided by most network switch manufactures.  If it is on the internet it is not safe or protected.
          Subject to those with the technical expertise I’d say this is a pretty good example of laws not keeping up with technology. 
          A practical response is that those using VOIP have implicitly consented to the technology which according the Jerry requires downloading the date.  But downloading data is quite different than intercepting the data, especially for purposes unintended and unwanted by the sender. 
          In the December 12, 2023 newsletter I updated advice that implicit consent was acceptable for recording and listening.  What constitutes implicit consent?  I haven’t done research on that issue, and cases are scarce, but until legislation specifically defines implicit it will be up to the judges to figure it out.  It certainly appears that the general consensus is that an announcement starting the call or beeps is sufficient notice.
          Probably the best advice is that you need to be careful recording or listening and be sure that you use the data only for lawful purposes with no ill-intent. 
          The Standard Form Agreements make it clear that end users are responsible to use any device you install in a lawful manner, and you’re not their lawyer explaining what that means. 

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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