This Conversation is Being Recorded

Burt Likko says:

…But don’t violate the law. For instance if you live in California, the applicable law would be Penal Code section 632:

(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
(b) The term “person” includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.
(c) 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 excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.
(e) This section does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.
(f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.

And then there’s the Federal wiretapping law, 18 U.S.C. § 2510 et seq., which is generally interpreted to apply to the use of electronic devices recording both telephonic and in-person conversations; however, for Federal law the critical purpose is the reason a recording was made. Payne v. Norwest Corp., 911 F.Supp. 1299, 1304 (D.Mont. 1995). Note also that surreptitious recordings of conversations or interactions with other people can also be classified as an invasion of privacy, e.g., Sanders v. American Broadcasting Co., Inc., 20 Cal.4th 907, 915, 923 (1999).

And you know, no one writes letters any more. We forget that they can be powerful things. If you are concerned (as you should be in most situations) that the circumstances of your surreptitious recording might come back to harm you would be to document what happened in the form of written correspondence to the other party to the conversation, which you will conclude with a phrase like “Please contact me if anything written above is incorrect.” And of course you’re going to keep a copy of that correspondence in case you need it later. You go through the exercise of sending the letter to the other party so as to a) weaken a subsequent hearsay objection when you try to admit the letter in court, and b) put the other party on notice that this is your version of events and afford them a fair opportunity to get their version of events out there in return correspondence to you, and c) use their all-but-certain failure to do so as evidence that what you said in your letter was the truth. The longer you wait to create such a letter, the less evidentiary impact it will have. Now, nothing like that is going to be quite so dramatic as what you capture on a video. And maybe this sort of thing isn’t appropriate to every transaction. But it could be helpful when dealing with a contractor or some other sort of oral agreement.Report