united-states california privacy recording
If other party notified me that phone conversation is being recorded, do I need to tell them if I am also recording it?
<p>When I call, for example, AT&amp;T or any other company, then before they pick up the phone they sometimes give me a notice that the phone conversation could be recorded for training or other purposes.</p>

<p>Since they already gave a notice that phone conversation is recorded, do I need to tell them as well that I could be recording it on my end too?</p>

<p>This is in California where both parties by law need to agree before recording conversation.</p>

<p><strong>I would also be interested how this law is interpreted in other states or countries.</strong></p>

<p>You do need to know the location of both parties.</p>

<p>U.S. Federal law (18 USC 2511(2)(d)), which prohibits the interception of wire and electronic communication, states:</p>

<blockquote>
  <p>It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where <strong>such person is a party to the communication</strong> or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.</p>
</blockquote>

<p>California Penal Code 632 requires the consent of all parties to a confidential communication in order for the conversation to be recorded.  The statute defines a "confidential communication" as follows:</p>

<blockquote>
  <p>The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but <strong>excludes a communication made</strong> in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance <strong>in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.</strong></p>
</blockquote>

<p>Once AT&amp;T, or anyone else for that matter, states that the communication is being recorded, it is no longer considered a confidential communication requiring the consent of all parties in order for any party to record it.</p>

<p>Part of the California Civil Jury Instructions for this code requires that the plaintiff must prove, among other things, that the plaintiff had a "reasonable expectation that the conversation was not being overheard or recorded."</p>

<p>You can see the full jury instructions here: <a href="https://www.justia.com/trials-litigation/docs/caci/1800/1809.html" rel="noreferrer">https://www.justia.com/trials-litigation/docs/caci/1800/1809.html</a></p>

<p>Yes.</p>

<p>It is the act of recording or intercepting which must be consented to. The law doesn't refer to some notion of a party consenting to a <em>call</em> being recorded/intercepted. It refers to the notion of a party consenting to <em>the act of recording/intercepting</em> a call.</p>

<p>The Californian Penal Code s 632 refers to having "consent" to "eavesdrop[] upon or record[]". United States law at 18 USC 2511(2)(d) refers to "prior consent to such interception".</p>

<p>In Australia, the Telecommunications (Interception and Access) Act 1979 (Cth), s 7, refers to "intercept[ing]" a communication, which picks up s 6 which defines "intercept" to exclude interception with the knowledge of the speaker. At the State level, the Surveillance Devices Act 1999 (Vic) (as an example) refers to "record[ing]" a private conversation without consent.</p>

<p>That is, even if AT&amp;T (or whoever) has consented to their own act of recording the call, they have not consented to your act of recording the call. Therefore you must let them know and get their consent before recording.</p>
