I doubt if someone is going to prison for recording a mystery shop even in a two party state, but use your judgement.

Shoppingdad - There was a big case in Massachusetts a few years ago when someone did go to jail for recording a police officer during a public demonstatation. Note that this was indeed in a PUBLIC location and the defendant was still convicted. Everyone gets to decide their own tolerance for risk. I am not going to risk going to jail for a $10 or even a $50 shop fee. [www.dmlp.org]

I'm going to add one more time that VIDEO is completely legal in all states. The law gets fuzzy or really nasty when it comes to AUDIO recording. I have a key vob camera that allows me to turn the microphone off and then it is not an issue.

Don't confuse video and audio recording. The standard gear used for MS is video with audio always on. There are plenty of options out there with hardware and software to just record video with no audio and that is not disputed anywhere as legal.

Just don't go into a fitting area or a restroom with it turned on.

Read my earlier posts on this subject for my recommended products.

Edited 1 time(s). Last edit at 03/11/2015 12:46AM by scanman1.

@walesmaven wrote:

John, I hope that you are only using the recorder in "one party consent" states. There are 14 states where it is illegal to record without the prior consent of the other party. For details, please see the thread on recorded shops near the top of the posts at New Mystery Shoppers, here.

WOW. John, I just saw that you are in Southern CA. CA has the strictest "two party consent" laws in the country and recording another person without their prior consent there is a felony.

You may want to reconsider your position.

Pretty much common knowledge. You can't record your shops here. I did just go to a training where somebody announced that they did that. Simple ignorance on the shopper's part. She was a know-it-all. Made me cringe.

video WITH audio may be illegal in some states...the issue is that alws were made governing audio recording people..but they haven't gotten around to updating video recording laws...

if you are illegally recording for private use...chances are it will not be an issue.....when law enforcement in involved...you are looking for trouble even if it is legal and need to be sure you can afford a lawyer.

Under some laws, businesses are in fact public.

Under the Americans with Disabilities Act any place open to the public such as a leasing office is a place of public accommodation.....restaurants, walmarts, amusement parks are all public places even though they are on private property run by private companies...but that is how ADA defines it..

private golf/country clubs are not considered to be public..and churches are exempt

audio recording laws could define it different

i doubt they would put any one in jail for illegally audio recording during mystery shop...but may convict....the penalty would depend on how much they perceive you to be a problem...recording a public official would likely be perceived as more of a crime that recording a landlord....

and also...are you telling me if i were to apply for a mortgage ..i could not be recording the lender in case they lie to me? that's not right......

Edited 1 time(s). Last edit at 03/11/2015 01:28AM by jmitw.

Definitions in each law are for the purpose of THAT law, only. One law defines "family" one way; another defines it another. Legislative bodies work out these definitions as compromises to get specific thing/people covered or left out or a specific law. You cannot just assume that the definition of "private" from one law can be used for another. The courts just do not see it that way.

Just my two cents as a shopper, editor and scheduler.

I too use an audio recorder on longer, more detailed shops. The data is never shared with anyone - it is like a transcript of notes. Second comment about the legality and I am not an attorney...but when you talk about apartment shops specifically every apartment shop I did with audio, video or regular ms shop...there were signs everywhere that said the property is under surveillance at all times. The employees are told they may be recorded at any time - phones as well as in person. So you do not necessarily have to have consent of the employee from you, but the company that hires them makes them sign their employment agreement. I have had this happen with many different types of shops - oil changes, apartments, new homes, and retail (at a mall) or retail in an outdoor mall (they have video camera's everywhere).

@James Bond 007.5 wrote:

That's a very easy fix. Put a plug in the headphone jack...doesn't have to be connected to anything. All you want to do is deactivate the speaker.

Always test it first though. I had one plug that I tried that disabled the microphone. Found out the hard way listening to silence while trying to complete my report.

We have all heard: "This call may be recorded for quality assurance." And, some go as far to say, "This call is being recorded for quality assurance." I have not done the video shops so I don't know that much about the law in regards to that..

Just announce "this conversation may be recorded for quality assurance" each time. After a few times it should feel natural.

If you are agreeing to the call being recorded by not hanging up, that means they agree to recording taking place.
Recording consent works both ways. Once they have informed you that recording is taking place, you can turn on your own recording as well.

I'm not a lawyer, and each state has their own interpretation of this, so don't take it as fact. Then if the call crosses state lines, it can be interpreted by either states laws.

If the call crosses state lines, if either one of the states is dual consent, that is the set of rules which apply. I live in Pennsylvania, so I can not legally call anywhere unless the MSC assures me that they have written permission from the employee (through their employer). I am in that situation right now with a series of phone shops all month, and the MSC commended me for asking.

If either party is in a 2 party state, 2 party consent laws apply. This is clearly sated in the legal sources cited above.

[www.techdirt.com]
Court says it ok to record conversation If done for legitimate reasons. Your mileage may vary, use this information at your own risk.

@quiettime wrote:

[www.techdirt.com]
Court says it ok to record conversation If done for legitimate reasons. Your mileage may vary, use this information at your own risk.

This is the 2nd U.S. Circuit Court of Appeals decision and only has coverage for the state of NY, CT and VT.

It's a good sign of where we are headed though.

Yeah I didn't bother reading it. I do what I want.

Of the three states covered in that court ruling, only CT is a two party state to begin with. Also, if that case is the one about recording law enforercement officers, I am told by attorneys who follow this that that case pertains only to a state prohibition on recording law enforcement officers.

@walesmaven wrote:

John, I hope that you are only using the recorder in "one party consent" states. There are 14 states where it is illegal to record without the prior consent of the other party. For details, please see the thread on recorded shops near the top of the posts at New Mystery Shoppers, here.

WOW. John, I just saw that you are in Southern CA. CA has the strictest "two party consent" laws in the country and recording another person without their prior consent there is a felony.

You may want to reconsider your position.

I would appreciate it if anyone could explain to me why rules concerning the recording of telephone conversations are being applied to in-person conversations? As far as I could see the restrictions apply to telephone interactions. This has a historical basis from before there were mobile phones. These were FCC and/or Utilities Commission initiated laws that were published in phone books (I used to read mine). Even Wikipeadia has its reference to the telephone rules as they apply to one party (of a phone conversation or two parties (of a phone conversation). As far as I can see, we can enter any shop and record as our work ethic and integrity dictates.

The state laws clearly apply to inperson recording. New reporters out in the field, for instance. It matter not what the recording device may be.

If your concept of integrity includes ignoring the laws in 14 states, why would any MSC trust you?

SR802 - you are incorrect. Some state statutes specifically differentiate between "wire" communications and in-person communications. Generally, but not always, dual consent states apply the same rule to both type of conversation. Some do it explicitly in the statutes, in others the effect is the same through case law.

In dual consent states you CAN NOT "... enter any shop and record as our work ethic and integrity dictates." Actually you can. But you are committing a felony and subject yourself to criminal arrest and prosecution. You are free to decide how likely that is to occur, and the relative risk/reward ratio.

This discussion of the law in Washington State explicitly deals with non-wire conversations, and you can select other states. [www.dmlp.org]

I wouldn't assume it's a felony. Many of these non-electronic (non wiretap) recording infractions are misdemeanors, if anything. A lot has to do with whether the conversation was reasonably expected to be private. You have to read the individual state's laws. It's more complicated than just "single or dual" consent. Context has a lot to do with it. The states set their own rules and they're not all the same.

Dspeakes - you are correct. I am sensitized to PA and DE where it is a criminal complaint brought by the police and prosecuted by the District Attorney and it is a felony offense if they choose to pursue it in both of these states (according to my attorney friends). Delaware does have some odd conflicting case law precedents, so even there it is not totally clear.

dspeakes,
In most of the 14 two party consent states it is a felony. You will find two references to legal aspects of the laws in each state at the New Mystery Shoppers' sticky topic on audio and video recording.

To others:
Video recording is covered by a ruling some years ago by SCOTUS, and is not subject to state laws. BUT the states control audio recording laws. Some posters seem to be mixing up the two. Some states differentiate between wire tapping (were a phone call is the medium of communication, NOT the recording device) and in person conversations. In wire tapping cases it will not matter what type of phone is the medium of communication. Just because your Smartphone has an app for recording in-person conversations, that does not become a wire tapping event, as one comment seems to imply.

I was reading one of the links, specifically about California and Arizona. Some of it had to do with intent. For instance, California's paparazzi law specifically addresses people stalking celebrities for monetary gain (they would sell the pictures) versus a fan snapping a picture on the street without permission. Some recordings made in places where there was no expectation of privacy (videos taken of crowd scenes on the street, for instance, or students recording lectures at college) are not illegal.

Everyone should read the specifics for the states s/he shops in and pay attention to the context. there was also mention of situations where a legal recording (both parties consented) picked up extraneous conversations in the background. If my intention is only to record my own voice as I mutter descriptions into my bra and there happens to be someone in ear shot that gets picked up on my recorder, this may not necessarily be an illegal recording at all. Because if my recorder could hear them, then *I* could hear them, so there was no expectation of privacy.

Anyway it was interesting reading and anyone using a recorder should read all they can about their state's laws. I don't remember which state I was looking at but something that was illegal there, under certain circumstances, was a misdemeanor, not a felony. Everyone needs to read and understand this for themselves because there's a lot of variation between the states in the fine print.

I looked up the California law some time ago after reading these threads and although it is a 2 party state for in person recordings the law did specify an expectation of privacy. Personally I would not expect privacy in a conversation with a server at a restaurant standing within earshot of another table or anyone walking by or in line at a cashier, but whether or not this is a misdemeanor or felony or not even illegal in a public place I have no interest in getting arrested to find out. I do use a recorder but very carefully and only for my own notes to myself.

The courts are moving to look at these laws as outdated with all the cell phones etc around. Wherever there is no expectation of privacy how can anyone have any claim that they were harmed by being recorded? If they said something in a public place, many people can hear them. That is is technically against some law doesn't mean it makes sense or is unethical. Looking at court cases it seems the courts are moving in the direction that recordings in public places are going to be so common that it better be legal or they will be wasting their time on cases that involve no damages and with no real reasoning behind it. And how do they know I have a recorder in my underwear? How does anyone know my cell phone is running a recording app? Everyone has a cell phone nowadays. Everyone can record. When a large percentage of the populace does something it tends to stop being illegal....

dspeakes,
It is audio, not video, that is controlled by state laws!

I saw that too in my reading and there is a ton of truth in the idea that it's hard to call something illegal when "everybody's doing it."

It used to be illegal in Arizona for two unmarried people (male and female) to cohabit for more than three days or your interfering children or nosy parents could have you up on morals charges. Simultaneously, Arizona used to recognize common-law marriage. So if you broke the first law for seven years, you became legally married automatically under the second law. Both have since been repealed because cohabitation became a socially acceptable lifestyle. It's now okay to cohabit for as long as you want, and it doesn't confer the benefits of marriage.

The more something is mainstream, the harder it is to get a jury to convict anyone, and I suspect that will be true of these recording laws.