Telephone recording laws

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 authorised 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 unauthorised 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.

Canada

Canadian law requires that at least one party in the phone call be aware of the recording. [cite web |url=http://lois.justice.gc.ca/en/ShowDoc/cs/C-46/bo-ga:l_VI::bo-ga:l_VII//en?page=5&isPrinting=false#codese:183_1 |title=PART VI INVASION OF PRIVACY |work=Criminal Code ( R.S., 1985, c. C-46 ) |publisher=Department of Justice Canada |accessdate=2008-09-10 |date=2008-08-14] [cite web |url=http://www.callcorder.com/phone-recording-law-canada.htm |title=Canada: Legal Guide On Recording Telephone Conversations |accessdate=2008-09-10 ] [cite web |url=http://answers.google.com/answers/threadview?id=320423 |title=Google Answers: Recording calls in Ontario, Canada |accessdate=2008-09-10 |date=2004-03-25] However, the Communications Security Establishment can be allowed to wiretap any conversation approved by the Defence Minister. [cite web |url=http://www.rsf.org/article.php3?id_article=10745 |title=Reporters Sans Frontières - Canada - Internet |year=2004 |accessdate=2008-09-10 |work=Internet Under Surveillance]

India

In India, telephone tapping has to be approved by a designated authority. It is illegal otherwise. Fact|date=February 2007

The Central Government or State Government is empowered to order interception of messages per section 5 of Indian Telegraphic 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.

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.

United Kingdom

The U.K. requires only one party notification when recording phone calls.

United States

In the United States, 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. Michigan has a similar rule: anyone who is a party to the conversation can record it himself, but a third party wishing to record the call must get the permission of all parties to the 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 says that at least one party taking part in the call MUST consent to the recording. (18 U.S.C. 119, Sec. 2511(2)(d)) This means recording a call you are not involved in is illegal throughout the U.S. UNLESS you are a business and the call is occurring on a phone line or extension you are paying for.

Two party consent states

Twelve states currently require that BOTH or ALL parties consent to the recording. These states are:
*California
*Connecticut
*Florida
*Illinois
*Maryland
*Massachusetts
*Michigan
*Montana
*Nevada
*New Hampshire
*Pennsylvania
*Washington

One party consent states

All other states, including the District of Columbia, besides those listed above require only one party consent just like federal law. However there are certain exceptions to these rules. See full rules [http://www.rcfp.org/taping/ here] . Also note that according to the California court case Kearney v. Salomon Smith Barney, Inc. (July 13,2006) if you call from a one party consent state into California, then the two party consent law outweighs the one party consent law. http://www.courtinfo.ca.gov/opinions/documents/S124739.PDF here] .

Accepted forms of consent

The [http://www.fcc.gov/cgb/consumerfacts/recordcalls.html FCC defines] accepted forms of getting consent for telephone recording by telephone companies as:
*Verbal or written consent given before the recording is made.
*Verbal 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.

Germany

In the meaning above, Germany is a two party consent state. Telephone recording without two or more parties consents is a criminal act according to Sec. 201 to German Criminal Code [http://www.iuscomp.org/gla/statutes/StGB.htm#201] - violation of the confidentiality of the spoken word. Anyway, telephone tapping by authorities has to be approved by a judge. For the discussing about the lawful interception in Germany please see here [http://de.wikipedia.org/wiki/Telefon%C3%BCberwachung] (German language).

References

* [http://www.fcc.gov/cgb/consumerfacts/recordcalls.html FCC Consumer facts on recording calls]
* [http://www.privacyrights.org/fs/fs9-wrtp.htm Privacy Rights Clearinghouse / UCAN]
* [http://www.rcfp.org/taping/ The Reporters Committee for Freedom of the Press article on telephone recording laws by state]
* [http://www.courtinfo.ca.gov/opinions/documents/S124739.PDF California courts document on Kearney v. Salomon Smith Barney, Inc.]
* [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html Federal law 18 U.S.C. 119, Sec. 2511(2)(d)]