The interception, recording and monitoring of telephone calls is governed by a number of different pieces of UK legislation. The requirements of all relevant legislation must be complied with. The main ones are:
Regulation of Investigatory Powers Act 2000 (RIPA), Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (LBP Regulations), Data Protection Act 1998, Telecommunications (Data Protection and Privacy) Regulations 1999, Human Rights Act 1998.
The relevant law, RIPA, does not prohibit individuals from recording their own communications provided that the recording is for their own use. Recording or monitoring are only prohibited where some of the contents of the communication - which can be a phone conversation or an e-mail - are made available to a third party, i.e. someone who was neither the caller or sender nor the intended recipient of the original communication.
You do not have to let people know that you intend to record their telephone conversations, provided you are not intending to make the contents of the communication available to a third party. If you are you will need the consent of the person you are recording.
A business or other organisation can record or monitor phone calls in a limited set of circumstances relevant for that business which has been defined by the LBP Regulations. The main ones are:
- to provide evidence of a business transaction
- to ensure that a business complies with regulatory procedures
- to see that quality standards or targets are being met
- in the interests of national security
- to prevent or detect crime
- to investigate the unauthorised use of a telecom system
- to secure the effective operation of the telecom system.
Businesses do not have to tell if they are going to record or monitor phone calls. As long as the recording or monitoring is done for one of the above purposes the only obligation on the businesses is to inform their own employees. If businesses want to record for any other purpose, such as market research, they will have to obtain your consent.
Where organisations feel it necessary to record or monitor calls - for whatever reasons - the rules under which they do so have been set by the Privacy of Messages condition of the major two telecom class licences - the Self-Provision (SPL) and Telecommunication Services (TSL) Licences. The most fundamental requirement of this condition is that every reasonable effort is made to inform all parties that the conversation may or will be recorded.
In addition, businesses can monitor, but not record, phone calls or e-mails that have been received to see whether they are relevant to the business (i.e. open an employee's voicemail or mailbox systems while they are away to see if there are any business communications stored there). However, any interception of employees' communications must be proportionate and in accordance with Data Protection principles. The Data Protection Commissioner is consulting on a Code of Practice on The use of personal data in employer/employee relationships.
It is proposed that where the standards in the Code of United Kingdom Telephone Recording Laws The interception, recording and monitoring of telephone calls is governed by a number of different pieces of UK legislation. The requirements of all relevant legislation must be complied with. The main ones are: Regulation of Investigatory Powers Act 2000 (RIPA), Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (LBP Regulations), Data Protection Act 1998, Telecommunications (Data Protection and Privacy) Regulations 1999, Human Rights Act 1998. Overview Practice are, in the Commissioner's opinion, necessary for compliance with the Data Protection Act 1998 they may be directly enforceable as a breach of the Data Protection principles. Accordingly this Code of Practice and the Data Protection Act must also be considered by any business before it intercepts employees' communications (see next paragraph).
Companies and organisations that routinely record telephone calls must ensure that their employees are able to make personal calls that are not recorded under the same system.
Staff must also be made aware that personal conversations could be recorded on their telephone and must have access to a separate telephone on the premises where they can make and receive personal calls that are not recorded.
Companies that do not provide this guarantee of confidentiality could be in breach of Article 8 of the Europe Convention on Human Rights that covers people's right to privacy.
The US federal law allows recording of phone calls and other electronic communications with the consent of at least one party on the call. A majority of the states and territories have adopted wiretapping statutes based on the federal law, although most have also extended the law to cover in-person conversations. 38 states and the D.C. permit recording telephone conversations to which they are a party without informing the other parties that they are doing so
A complete state-by-state set of regulations regarding telephone call recording may be obtained in the following report published by The Reporters Committee for Freedom of the Press.
The federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510 et seq., prohibits the wilful interception of telephone communication by means of any electronic, mechanical, or other device without an applicable exemption. There are two principal exceptions:
Consent: In the absence of more restrictive state law, it is permissible to intercept and record a telephone conversation if one or both of the parties to the call consents. Consent means authorization by only one participant in the call; single-party consent is provided for by specific statutory exemption under federal law. 18 U.S.C. Sec. 2511(2)(d).
"Business telephone" exception
The "business telephone" exception, which generally allows monitoring of calls and taping over an extension phone which is both provided to a subscriber in the ordinary course of a telephone company's business and is being used by that subscriber in the ordinary course of its business. This provision generally permits businesses to monitor the conversations of their employees, including personal conversations.
Penalties: The federal statutes provide criminal penalties for unlawful interception of telephone conversations, including up to five years' imprisonment or a maximum of $10,000 in fines. They also allow for civil remedies, by which private parties are entitled to recover actual and punitive damages, together with fees and costs.
Individuals and businesses that make surreptitious recordings often do so with the expectation that the recordings will be useful as evidence. Such recordings are subject to significant barriers to use as evidence. First, if made in violation of either federal or state law, the recordings will almost certainly be inadmissible. Second, even if lawfully recorded, the tapes will be exempt from the hearsay rule and will not, in most jurisdictions, be usable for impeachment. Anyone contemplating an evidentiary use of surreptitious recordings should consult with an attorney prior to making the recording.
Federal law may apply when the conversation is between parties who are in different states, although it is unsettled whether a court will hold in a given case that federal law "pre-empts" state law, but either state may choose to enforce its own laws. Therefore it is better to err on the side of caution when recording an interstate telephone call.
The FCC's role in assisting consumers who believe their telephone conversations were unlawfully recorded is generally limited to ensuring that telephone companies enforce their tariff provisions regarding recording of telephone conversations. The only penalty that can be enforced by the local carrier is revocation of telephone service. (In the Matter of Use of Recording Devices in Connection with Telephone Service)
The FCC protects the privacy of telephone conversations by requiring notification before a recording device is used to record interstate or foreign telephone conversations. These types of conversations may not be recorded unless the use of a recording device is:
- Preceded by verbal or written consent of all parties to the telephone conversation; or
- Preceded by verbal notification which is recorded at the beginning, and as part of the call, by the recording party; or
- Accompanied by an automatic tone warning device, sometimes called a beep tone, which automatically produces a distinct signal that is repeated at regular intervals during the course of the telephone conversation when the recording device is in use.
- Also, no recording device may be used unless it can be physically connected to and disconnected from the telephone line or switched on and off.
The above FCC rule requirements apply to telephone common carriers. Similar requirements are imposed on consumers through the carriers' tariffs.
While the U.S. federal law only requires one-party consent, many states have accepted different laws. In some states all parties must give their consent or at least be notified that the call is about to be recorded (with necessary opt-out option: if you don’t like them to record the call, you can ask them to stop recording). There also was a case law decision from many years ago (the 1950's) that went to the Supreme Court and affirmed that the federal law does not supersede state authority/statutes unless the call or the tap crosses state lines – that is why each state went ahead and established their own guideline/statute.
States Requiring One Party Notification
|Alabama||New Mexico||District Of Columbia||Oregon|
|Arizona||North Carolina||Hawaii||Rhode Island|
States Requiring Two Party Notification
The nature of the Australian legal system (being a Federation of States) is similar to the US one. This involves complying with both Commonwealth and various State laws. In Australia there are certain legal restrictions on listening to and recording telephone calls according to interception and listening devices laws. These laws do not themselves set clear boundaries and as a result Call Centres are often in a state of confusion about how far they may go when undertaking listening and recording.
The Telecommunications (Interception) Act 1979 prohibits a person from listening to, or recording, a communication in its passage over a telecommunications system without the knowledge of the person making the communication. A communication includes conversation and a message, and any part of a conversation or message, whether in the form of speech, music or other sounds, data, text, visual images, signals or in any other form or combination of forms. This law does not attach so much to the recording of a telephone call but more the interception. It is the act of interception that creates the offence not the recording. Naturally recording can form part of interception, but it is not the key element of the offence.
The Courts have generally made a distinction between:
- Listening or recording using equipment which is electronically connected into or which intercepts radio signals transmitted by a telecommunications system. In this case, the Interception Act applies and the State Listening Devices legislation does not apply; and
- Listening or recording using equipment which is external to the telecommunications system. In this case, the State Listening Devices legislation applies.
Therefore, listening to, or recording telephone conversations without both party's knowledge, using devices such as “double jacking", a bug within the telephone mouthpiece, a wire attached to the telephone line, and an interception device used to intercept car telephone waves, fall within "interception" prohibited under the Telecommunications (Interception) Act. However, there is an exception to the prohibition in the Interception Act which states that the listening or recording does not, for the purposes of the Act, constitute "interception" of the communication if:
- A person is lawfully on premises
- The telecommunications service is provided by a carrier or a carriage service provider, or any apparatus or equipment that is part of that service.
- Listening to or recording communication that passes over that telecommunications service.
- The communication is either made to or from that service or being received at that service in the ordinary course of operation.
Listening Devices legislation only applies to private conversations. Each State and Territory prohibits the use of a listening device to record a private conversation to which you are not a party. In some States and Territories, a party to the conversation may record the conversations without the other party's consent. In all States and Territories, a party to the conversation is prohibited from communicating or publishing a record or a report of that conversation except in very limited circumstances.