California generally makes it illegal to wiretap and record calls. The law is codified in California’s Penal Code Section 630, and under the laws of the State of California, it is considered an invasion of privacy to surveillance or record individuals on the telephone without their knowledge.
It is prohibited to intercept, receive, or record a “confidential communication” without the consent of everyone on the call. The purpose of this legislation was to ensure that there was privacy in telephone conversations. A different code section (Section 632.7) makes it illegal to “intercept or receive and intentionally record” a communication with the consent of all parties to the communication. Importantly, Section 632.7 does not require the recorded communication to be “confidential” before liability is imposed.
Who is “Receiving the Call?”
Do you ever wonder why when collection companies make calls, they leave a message and asked the customer to call them back? The answer has to do with CIPA, and what is considered “intercepting” a call versus “receiving” a call. At least one court in California has determined that if a customer makes the call to the company, the customer is consenting to the call and the fact that it may be recorded. (Young v. Hilton).
On the other hand, there have been other courts that have not read the language so strictly, and have allowed legal claims to go forward when a customer has complained about being recorded without their consent, even when they initiated the call to the company.
As a result, the law is mixed, and different judges have come to different conclusions, making the landscape problematic for businesses who record calls for business protection or out of necessity.
Outbound calls, on the other hand, are always considered to be initiated by the business and must receive the customer’s consent before being recorded.
A violation of California’s CIPA can result in a fine of up to $2,500 and/or imprisonment for up to a year. In addition, violators are subject to civil liability in the amount of $3,000 or 3 times the amount of any actual damages sustained in the result. Often, these damages are per violation.
If your company has to record calls for quality assurance, audit, confirmation, or similar types of reasons, there are best practices that will reduce risk.
Until there is final word from the California courts, businesses should continue to make automated disclosures at the beginning of a call from a customer, stating that the conversation may be recorded, and taking the necessary steps with telephone infrastructure to make sure that the automated disclosure cannot somehow be bypassed by the caller.
Outbound calls should also include call recording disclosures for outbound greetings indicating that the call is recorded, if it is in fact recorded.