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TWO-PARTY CONSENT REQUIREMENTS FOR RECORDING CALLS

Direct Marketing & Behavioral Advertising, Privacy Law, Telemarketing , , ,

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For a call recording to be lawful, federal law[1] and most states require at least one party to the conversation to consent to the recording. However, many states go further, requiring two-party (or all-party) consent for a call to be lawfully recorded.

As the following list demonstrates, navigating the state law nuances of two-party consent for recording calls can require some finesse.

CALIFORNIA

Requires prior consent from all parties to record a confidential in-person, telephone, or video communication.[2]

However, case law indicates that where a person communicating is made aware that the conversation is being monitored or recorded, there may be no violation because there is no objectively reasonable expectation of privacy.[3] Moreover, by continuing with the conversation after being so warned, consent is given by implication.[4]

CONNECTICUT

Allows call recording if:

  • all parties have consented to the recording,
  • recording is preceded by a verbal notification which is recorded as well, or
  • recording is accompanied by an automatic tonal warning.[5]

DELAWARE

Requires two-party consent for recording telephone or other private conversations.[6]

However, a district court held the state law was meant to emulate its federal equivalent,[7] so one-party consent may, in some circumstances, satisfy the consent requirement.

FLORIDA

Requires prior consent from all parties to record an oral communication.[8]

However, the law does not cover when the person communicating had no reasonable expectation of privacy,[9] which may occur when the parties are notified at the outset that the call will be monitored or recorded.

ILLINOIS

Requires all parties to consent to recording either an in-person or transmitted communication when at least one party intends the communication to be of a private nature under circumstances reasonably justifying that expectation.[10]

MARYLAND

Requires all parties to a communication to consent to the recording.[11]

However, Maryland courts have interpreted this to be limited to situations where parties have a reasonable expectation of privacy.[12]

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