Let the Recorder Beware

You can record audio and video but be careful of the law.=

by Virginia Fair

These premises are under video surveillance.
Convenience stores post this no nonsense warning at their front doors. Banks who display a height chart at their exit door are indirectly issuing the same warning.

This conversation may be recorded for training purposes.
Most if not all companies and utilities issue this warning before connecting a customer to a representative.

IP camera surveillance is a given these days. In most cases the camera warnings are intended to warn the “bad guys”, and the recording notice is for “the rest of us.” The majority of people take these messages as givens and the concept rarely registers.

A few however will protest that to record the conversation is unconstitutional and violates their rights under the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This provision was ratified by Congress and added to the U.S. Constitution on December 15, 1791. Over the years, its scope has been the target of arguments and interpretations in courts high and low all the way up to The Supreme Court. But two hundred and ten years later the events of one day, September 11, 2001 blunted resistance to surveillance literally over night.

It’s hard to venture out today, without your presence being documented on someone’s surveillance system. Airports, parking garages, parking lots, building lobbies and elevators, stores of every kind, hospitals, parks, you name it, cameras are in use. Washington DC, among other locales, is in the midst of creating a city wide surveillance system, consolidating and integrating more than 5,000 cameras already deployed independently by multiple district entities. When completed nearly 5.6 million people will be monitored daily.

Audio recordings fall under the Electronic Communications Privacy Act of 1986. The ECPA is an amendment to Title lll of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wiretap Act) extending restrictions on wiretaps beyond phone calls to include electronic data transmissions. As written, it protects wire, oral, and electronic communications as they are being made, are in transit, or when they are stored on computers. It applies to email, telephone conversations, and data stored electronically.

So how does this apply in the real world? As mentioned before, in most municipalities, if you leave your house you’re going to end up on a video recording somewhere, and that’s that. But any conversation you may be having is still considered private. For the most part, business owners are okay if they display camera warning signs but the same is not true when it comes to audio recording. They can record all they want, but they are on thin ice when it comes to audio recording. Federal law permits very few exceptions to the rule. This brings up the question of that recording warning you hear while on hold awaiting customer service. What of it?

State laws cover the recordings of telephone conversations and this is where it becomes complicated. Each state has its own particular wording but it boils down to the need for one party or two party consent. One party consent requires the recording party to inform the other party that she is being recorded. Two party consent goes one step further and requires the recorded party to give consent. Under ether law if a person stays on the line it is implied consent. Thirty eight states and the District of Columbia are one party states while twelve states, California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington require both parties to consent.

Audio capability is not a problem if it is not being recorded; for example, when an IP video camera is being used to monitor entrance to a facility. In this scenario an IP intercom with a call button is located at an electronically locked door. Both the button and the intercom are connected to an IP camera. You can use a standard web browser to view and talk to the person at the door, or even use your smart mobile device to talk to the person and release the door.

If you need help with a system that includes audio, just contact us and we will help you define the right system. We can be reached at 914-944-3425 or 1-800-431-1658 (in the USA), or use our contact form.

Virginia Fair