recording consent pandemic
How work at home effects interstate telephone recording consent
<p>Suppose a conversation is recorded between Participant A (consenting to record) and Participants B C D, all three of whom are working in the capacity of employees of a company located in the same one party consent state, NJ -- however, due to the pandemic, it turns out one is working from home in PA, and this is discovered later by Participant A.  How serious of a problem would this be if it was brought to a PA court, especially if the participant in PA was functioning in the capacity of an officer of the NJ company at work?</p>

<p>The main legal question is, whose law applies? According to Krauss v. Globe Int'l, Inc., 1995 N.Y. Misc. LEXIS 787, where Krauss (in all-party PA) was recorded by Globe (in one-party NY). Krauss sued Globe in NY under PA law. The court found that the &quot;law of the place of injury&quot; determines which laws hold. Since the recording took place in NY and not in PA, NY law applies, case dismissed.</p>
<p>A similar setup (and different outcome) arose in <a href="https://www.courtlistener.com/opinion/2633480/kearney-v-salomon-smith-barney-inc/?" rel="nofollow noreferrer">Kearney v. Salomon Smith Barney</a>, 137 P.3d 914 where SSB (in one-party GA) recorded Kearney (in all-party CA). The CA Supreme Court reached the opposite decision, finding that &quot;the failure to apply California law in this context would impair California's interest in protecting the degree of privacy afforded to California residents by California law more severely than the application of California law would impair any interests of the State of Georgia&quot;.</p>
<p>It is unlikely that functioning in the capacity of an officer of a NJ company at work would be found legally relevant. The main questions would be, where was the recording made, and which court system is deciding the matter? Assuming that the suit is filed in PA and given that Pennsylvania no longer follows the <em>lex loci delicti</em> rule (<a href="https://law.justia.com/cases/pennsylvania/supreme-court/1964/416-pa-1-0.html" rel="nofollow noreferrer">Griffith v. United Air Lines</a>,416 Pa. 1), the prospects are greater, following the persuasive precedent of the California ruling would tip the sales in favor of a finding against the NJ person making the recording of a party who is in PA (and who files the suit).</p>
<p>In a somewhat related PA Supreme Court case <a href="https://www.leagle.com/decision/inpaco20200422405" rel="nofollow noreferrer">Pennsylvania v. Britton</a>, 229 A.3d 590 there arose a &quot;two jurisdictions&quot; problem of recording – involving California and Pennsylvania – the court observes that</p>
<blockquote>
<p>when an issue implicates substantive laws, such as the privacy rights
asserted by Appellant, a conflict-of-law analysis requires the forum
court to apply the law of the state with the most interest in the
outcome of the controversy</p>
</blockquote>
<p>which is to say, the PA Supreme Court agreed (indirectly) with the reasoning in Kearney v. SSB.</p>
