I have recorded telephone calls in Massachusetts for MSCs. The law states that this is illegal in Massachusetts. Below is the laws for all states. Does anyone know if I am recording phone calls when I shouldn't be?

When must you get permission from everyone involved before recording?

Eleven states require the consent of every party to a phone call or conversation in order to make the recording lawful. These "two-party consent" laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington. (Notes: (1) Illinois' two-party consent statute was held unconstitutional in 2014; (2) Hawai'i is in general a one-party state, but requires two-party consent if the recording device is installed in a private place; (3) Massachusetts bans "secret" recordings rather than requiring explicit consent from all parties.). Although they are referred to as "two-party consent" laws, consent must be obtained from every party to a phone call or conversation if it involves more than two people. In some of these states, it might be enough if all parties to the call or conversation know that you are recording and proceed with the communication anyway, even if they do not voice explicit consent. See the State Law: Recording section of this legal guide for information on specific states' wiretapping laws.

You answered your own question it seems.

Canuck

I thought that the MSCs would know the laws and would have special permission from the client in order to record. Since the client and the shopper know about the recording. I still find this confusing, thinking that the MSC would not do anything illegal or ask shoppers to do something illegal. I know several of you record and video all the time, I would have assumed that it was in a One Party Consent state.

Shopper8, you need to verify with the MSC that permission has been received from the parties involved for the call to be recorded. Generally speaking, if an employer is conducting recorded mystery shops, they will have the employees sign a waiver that states the employee acknowledges that they may be recorded at work. For a phone recording, it may be enough that the employer tells the employees [and have them sign] an acknowledgement that calls on the phone may be recorded.

There is one MSC that I work for occasionally on video shops, and I notice they have several in Florida that they have in bold print, "Do not record these shops, written only." Florida is a two party state and these are competitor shops. Obviously, the competitor cannot obtain permission for the employees to be recorded, even though they may have given their employer that permission.

That's true, JB. If they've signed a waiver, then you're good to go.

Correction..... there are 14 states requiring consent of all parties to a recorded cnversation.

OP: please check out this site
[www.vegress.com]

Question. As long as the recording is only bring used to make sure you fill out a report properly, the recording itself is not being distributed, does it matter?

People have car cams, body cams, and even record calls all of which can be used in court.

SCOUS has ruled that video only is permitted in areas where there is no reasonable expectation of privacy.

The audio portion is based on the laws of the individual states, see the link Walesmaven posted above. As to using a recording made in a two-party consent state...I know that I would not want to be caught doing that. And there are devices that can detect recording devices, as well as all forms of electronic devices whether or not they are designed to transmit a signal. That's because every modern electronic device uses a "superhetrodyne" circuit to amplify the audio it receives and those circuits release spurious emissions which are able to be detected.

That's the simple version. I can get my FCC Rulebook and give you the complex version if you desire.



Edited 1 time(s). Last edit at 11/30/2014 09:58PM by James Bond 007.5.

Cameras are NOT the issue; audio recording is. AND, it's a felony without prior consent in 14 states, no matter what the purpose of the audio recording. So, no recorded calls without all parties consent cannot be used in court in those 14 states! Wire tapping, however, is an entirely different set of federal laws. Audio recording is governed by state laws.

I learned something from you, JB. Thanks.

Thanks, Canuck. I had thought about using my audio recorder for a casino shop in a one-party state. Other shoppers on here told me that the casinos don't like any kind of electronics and they actively use scanners to detect the same.

While I probably could design a recorder that they could not detect, it's not worth the time or effort.

I only see 12 states that are pink (2 party) on the map from the link shared above. What are the other 2 states?

Simply making the recording in a 2-party consent state is a felony. It doesn't matter if you use it or not. It is a felony and you can be arrested and prosecuted by the State.

It is essentially impossible for a competitor shop to satisfy the dual consent requirement. If Lowe's is having you shop the competition (Home Depot), it is essentially impossible for Lowe's to have gotten written permission from every employee at Home Depot allowing recording.

I often see phone shops in dual consent states which state that the calls will not be recorded so you have to take good notes. When I am in doubt, I ask the scheduler. I am not going to jail, or even to court, for a $10 shop fee. Not even for a $1000 shop fee.

OK we are discussing phone calls. I missed that part. I thought we were including audio recording ones in person shop.

Isaiah58 -

It doesn't matter. The same laws apply to making audio recordings in a store = an in-person shop. In a two-party ocnsent state, you need the permission of the person in the store or on the phone. Same law. It doesn't matter at all. Recording without the consent of the other party (you are one of the two parties) is a felony offense.

Isaiah,
It is any audio recording that we are talking about. BTW, some lists of two party states omit Delaware. However, due to some state court rulings there we treat Delaware as one of the two party consent states.

Another complication: if you live in a one-party consent state and call someone in a two-party consent state, the two-party consent laws apply. If you live in a two-party consent state and call someone in a one-party consent state, the two-party consent laws still apply. I live in Pennsylvania (definitely two-party consent) and work in Delaware (the best advice is to treat it as two-party consent).

myst4au,
I was just about to return to add the bit that you did about interstate phone calls! Good job. Even some MSACs don't quite "get" that.

Also be aware that if you are seen recording or thought to be recording and can't or won't prove that you are not, the police will may confiscate your device on the spot and keep it as evidence as a warrent is needed to open your phone to look. Even if the other party does not pursue charges to the fullest extent I know that would have a heck of a time functioning or even getting home without my Smartphone.

Vicky -

Life is even worse than what you painted. Since this recording a conversation (in-person or on the phone) is a felony offense, "the other party" is not the person you have recorded (they are just one of the witnesses), but the District Attorney. Even if the "other party" doesn't want to testify, if the police observed you, the District Attorney may choose to press charges anyway. It is then not "Someone vs Vicky", it is "The State of Pennsylvania vs Vicky" in a felony case. Make sure that you have your attorney on retainer. [Vicky, I know that you understand this, I just used your name as an example since you had the last post.]

Couldn't happen? Read this article: [www.syracuse.com] or for more details (admittedly this website has a clear bias), [photographyisnotacrime.com]

I loved when this came up recently in an episode of "The Good Wife" and I could tell my husband what was going to happen before they explained it!

I can name two Msc that regularly audio and video record competitor shops in two party consent states . I have been contacted several times for these shops. When I asked for proof of authorization to complete these shops I was clearly told what a moron I was for turning down easy high paying shops and de activated me for questioning them about having authorization.

The problem with this forum is there are many on here that feel a need to
Bow at the knees for anything an msc would ask you to do rather than call out a msc that would have a shopper do something illegal or screw over a shopper.
60 percent of my work is video shopping. I make each msc provide proof of authorization before conducting a shop and carry it with me to the shop.

I'm not saying it didn't happen, but I've completed video shops for at least 12 different companies over the last five years and not one ever asked me to record a competitor shop in a two party consent state. In fact one had us shopping for the client and because the client was too slow with the paperwork we did not even record their own employees in two party states. Those were all completed as traditional, written shops.

I was asked to do a competitor shop in a 2 party state many years ago. I balked and was told that the MSC's attorney said it was okay. I pushed back and suggested that they probably had asked the attorney if a video shop was oaky, without explicitly stating that there would also be audio on the recording. WOW! The project manager asked their attorney the right question; I got a bonus for rasising the issue before they made a huge mistake; they shop became a written shop. I always ask a new video MSC to verify that 2 party written consent has been obtained. Most reply that they require that in ALL states, not just 2 party states.

It is up to the shopper to ask the question.

walesmaven Wrote:

> It is up to the shopper to ask the question.


Indeed it is. Because it is your ass that is going to be hauled into court to answer for it.