Telephone recording laws

From Wikipedia, the free encyclopedia
Jump to: navigation, search

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 authorized 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 unauthorized 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.

Contents

Canada [edit]

Canadian law requires that at least one party in the phone call be aware of the recording.[1]

Denmark [edit]

Calls and conversations may be recorded by any active participant. There is no requirement to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws.[citation needed]

It is in general not legal to tape conversations in a court room.[citation needed]

Finland [edit]

In the case of private persons, calls and conversations may be recorded by any active participant. There is no requirement to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws, such as data protection (privacy) legislation, libel laws, laws governing trade and national secrets, and any agreements, such as non-disclosure agreements.[2]

Recording of calls by a company or an employer is subject to data protection legislation and, as a general rule, requires informing the participants prior to recording.[2]

Germany [edit]

Germany is a two-party consent state—telephone recording without the consent of the two or, when applicable, more, parties is a criminal offence according to Sec. 201 of the German Criminal Code[3]—violation of the confidentiality of the spoken word. Telephone tapping by authorities has to be approved by a judge. For discussion on lawful interception in Germany please see de:Telefonüberwachung (German language).

India [edit]

In India, telephone tapping has to be approved by a designated authority. It is illegal otherwise.[4]

The Central Government or State Government is empowered to order interception of messages per section 5 of Indian Telegraph Act 1885.[5] 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.

Phone tapping is permitted based on Court order only and such permission is granted only if it is required to prevent a major offence involving national security or to gather intelligence on anti-national/terrorist activities. This seems to be wrong legal position as in India there is no requirement to obtain a court order to do phone tapping.[6]

Though economic offences/tax evasion were initially covered under the reasons for interception of phones, the same was withdrawn in 1999 by the Government based on a Supreme Court order citing protection to privacy of the individual.

As 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.

With the proposed use of central monitoring system (CMS) of India [7] phone tapping in India has become really controversial. It has been suggested that the CMS must have PMO scrutiny [8].

The Government of India instructions provide for approved attachments. There is no provision for attachment for recording conversation.

Latvia [edit]

Calls and conversations by private persons may be recorded by any active participant. There is no requirement in laws to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws.[9]

New Zealand [edit]

Recording of phone calls by private persons falls under interception-related provisions of the Crimes Act 1961, which has a general prohibition on the use of interception devices. An exception is made for when the person intercepting the call is a party to the conversation. There is no requirement that both parties be aware of the interception. [10]

Turkey [edit]

Turkish law requires both parties in the phone call be aware of the recording.[11]

United Kingdom [edit]

The Regulation of Investigatory Powers Act 2000 in general prohibits interception of communications by a third party, with exceptions related to government agencies. A recording made by one party to a phone call or e-mail without notifying the other is not prohibited provided that the recording is for their own use; recording without notification is prohibited where some of the contents of the communication—a phone conversation or an e-mail—are made available to a third party. Businesses may record with the knowledge of their employees but without notifying the other party to

  • provide evidence of a business transaction
  • ensure that a business complies with regulatory procedures
  • see that quality standards or targets are being met in the interests of national security
  • prevent or detect crime to investigate the unauthorised use of a telecom system
  • secure the effective operation of the telecommunications system.

They may monitor without recording phone calls or e-mails that have been received to see whether they are relevant to the business (e.g., to check for business communications addressed to an employee who is away); but such monitoring must be proportionate and in accordance with data protection laws and codes of practice.

This summary does not necessarily cover all possible cases. The main legislation which must be complied with is:

Under RIPA unlawful recording or monitoring of communications is a tort, allowing civil action in the courts.

There is a summary of applicable rules on the Oftel website[15] Detailed advice from a solicitor, oriented towards businesses, is available on the Web.[16]

Recording is sometimes advised, as in recording business transactions carried out by telephone to provide a record. It is sometimes mandatory; from March 2009 Financial Services Authority rules required firms to record all telephone conversations and electronic communications relating to client orders and the conclusion of transactions in the equity, bond, and derivatives markets.[17] In November 2011 this was extended to cover the recording of mobile phone conversations that related to client orders and transactions by regulated firms.

United States [edit]

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.

Federal law requires that at least one party taking part in the call must be notified of the recording (18 U.S.C. §2511(2)(d)). For example, it would be illegal to record the phone calls of people who come into one's place of business and ask to use the phone, unless they are notified. Several states (e.g., California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, Oregon and Washington) require that all parties consent when one party wants to record a telephone 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:

All-party notification states [edit]

 This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (July 2012)

Twelve states currently require that all parties consent to the recording. These states are:

  • California[18]
  • Connecticut [19]
  • Florida[20]
  • Hawaii (in general a one-party state, but requires two-party consent if the recording device is installed in a private place)[21]
  • Illinois (debated, see next section)
  • Maryland[22]
  • Massachusetts [23]
  • Montana [24] (requires notification only)
  • Nevada [25]
  • New Hampshire[26]
  • Pennsylvania[27]
  • Washington[28]

One-party notification states [edit]

All other states (and the District of Columbia) not listed above require only that one party consent.

Illinois courts have ruled that "eavesdropping" only applies to conversations that the party otherwise would not have been able to hear, thereby effectively making it a one-party consent state.[29][30] However, there still appears to be confusion[31] and debate[32] over the law.

If a caller in a one-party state records a conversation with someone in a two-party state that caller is subject to the stricter of the laws and must have consent from all callers (Cf. Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95 (2006)[33]).

Accepted forms of notification for recording by a telephone company [edit]

The FCC defines[34] accepted forms of notification for telephone recording by telephone companies as:

  • Prior verbal (oral) or written consent of all parties to the telephone conversation.
  • Verbal (oral) 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.

Note that the law re: verbal is not worded "consent" but "notification".[34]

References [edit]

  1. ^ See the Personal Information Protection and Electronic Documents Act (Canada) aka PIPEDA, the Personal Information Protection Act (Alberta), the Personal Information Protection Act (British Columbia) and an Act Respecting the Protection of Personal Information in the Private Sector (Quebec).
  2. ^ a b "Omien keskustelujen ja puheluiden nauhoittaminen työpaikalla (Data Protection Ombudsman)". 2007. Retrieved 2010-01-20. 
  3. ^ Sec. 201 of the German Criminal Code
  4. ^ 1997 Indian Supreme court Verdict
  5. ^ Indian Telegraph Act, 1885
  6. ^ Why Indian Central Monitoring System Is Dangerous And How It works?
  7. ^ Central Monitoring System (CMS) Of India
  8. ^ Indian Central Monitoring System Project Needs PMO Intervention
  9. ^ "Fizisko personu datu aizsardzības likums (Personal Data Protection Law)". 2010. Retrieved 2011-11-30. 
  10. ^ "Crimes Act 1961, Section 216B". 
  11. ^ TCK 132-140
  12. ^ UK Regulation of Investigatory Powers Act 2000
  13. ^ Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000
  14. ^ Telecommunications (Data Protection and Privacy) Regulations 1999
  15. ^ Oftel (UK) FAQ: Recording and monitoring telephone calls or e-mails
  16. ^ Telephone Monitoring: Dos and Don'ts (UK)
  17. ^ FSA Web site: FSA publishes new rules on telephone recording, 3 March 2008
  18. ^ California Penal Code Section 632(a)
  19. ^ [1]
  20. ^ Florida Statutes s. 934.03
  21. ^ [2]
  22. ^ Maryland Code Section 10-402, Courts and Judicial Proceedings Article
  23. ^ [3]
  24. ^ [4]
  25. ^ [5]
  26. ^ RSA 570-A:2 - NH General Court
  27. ^ "Can we tape?" Pennsylvania.
  28. ^ Revised Code of Washington 9.73.030
  29. ^ People v. Beardsley (1986)
  30. ^ Bender v. Board Of Fire And Police Commissioners Of The Village Of Dolton
  31. ^ http://www.alternet.org/rights/149706/75-year_prison_sentence_for_taping_the_police_the_absurd_laws_that_criminalize_audio_and_video_recording_in_america
  32. ^ http://markmccoy.com/wp/2011/02/22/an-analysis-of-the-draconian-application-of-illinois-eavesdropping-law-720-ilcs-514/
  33. ^ California courts document on Kearney v. Salomon Smith Barney, Inc.
  34. ^ a b http://www.fcc.gov/cgb/consumerfacts/recordcalls.html

External links [edit]

Retrieved from "http://en.wikipedia.org/w/index.php?title=Telephone_recording_laws&oldid=554910814"