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Each year, the California Association of Collectors (CAC) provides insight to debt collection professionals through a series of educational courses. Last year they touched on topics ranging from responding to disputes to Chapter 13 bankruptcy collection opportunities to creating compliant collection letters. Last month, this year’s panelists, Courtney Reynaud, Shawn Suhr and David J. Kaminski kicked off the series with an in-depth look at call recording laws.
Kaminski, partner at Carlson & Messer LLP, a Los Angeles-based civil litigation firm, which focuses its practice in defending the entire financial services sector, took the lead discussing call recording. Throughout the webinar, he reviewed both federal and state regulations, with special attention to California’s particularly stringent requirements. Here’s an overview of the regulations that exist:
Call Recording Laws
Adhering to laws while call recording can become complicated. To record a telephone conversation is not per se illegal in any jurisdiction, but it can become illegal if the proper consent is not obtained. Consent is a key concept under all call recording laws. Both federal and state guidelines govern the practice, and each state has different guidelines for the circumstances under which it is legal to record a telephone call.
There is a federal call recording law in place, governed by the Electronic Communications Privacy Act of 1986. It’s important to understand that this is a one-party consent law. Meaning, only one party to the conversation must give permission to record a conversation to ensure it is legal. However, Kaminski warns that if you are not one of the parties involved (for instance, in a two-party conversation), be wary. If “a third party seeks to intercept that conversation without consent from one of the parties thereto, there can be potential liability under this federal law.”
On top of the federal regulation, there are 13 states that require two-party consent (where all parties to the conversation must consent) to legally record a call: CA, CT, DE, FL, IL, MD, MA, MI, MT, NH, NV, PA, WA. Of all the two-party consent states, California’s law provides for $5,000 per violation in Penal Code 637.2. Each state’s laws are different, so it’s important to speak to your agency’s attorney to ensure your current call recording practices are compliant.
California’s call recording law is formally known as The California Invasion of Privacy Act (CIPA). Because this article was based on a webinar given by the California Association of Collectors, and it is one of the most precarious call recording laws, it is the one state statute we’ll focus on here. It is also important to note that CIPA considers numerous situations which involve individuals’ privacy rights in regard to technology. The information provided here is not a comprehensive look at CIPA and focuses only on call recording.
Basic Call Recording Components of CIPA
- CIPA distinguishes between calls to/from a landline and calls to/from a cell phone.
- The recording of a confidential call to a landline phone is illegal without consent of all parties to the conversation. (Cal. Penal Code § 632)
- The recording of any cell phone call is illegal without consent of all parties to the conversation (no confidentiality requirement). (Cal. Penal Code § 632.7)
“The legislature thought that analog signals back in the late ‘80s and early ‘90s could be easily intercepted,” Kaminski explains. This history suggests the rule was only intended to apply to third-parties. This may have been the original aim, but that isn’t how the law has been interpreted. Most court decisions have held that the law applies to two-party conversations.
How CIPA Impacts Agency Policy
While CIPA distinguishes between landline vs. cell phone recordings, this may not be something you should tackle within your agency’s recording policies. Reynaud points out that because it’s difficult to learn during a call what type of phone the other party is using, “if you just have a policy of how you notify consumers that calls are recorded, and you do that regardless of the type of telephone you’re speaking with them on, you’re going to be pretty safe.”
Kaminski and the CAC webinar panelists discussed CIPA in greater detail throughout this first course. To learn more about CIPA, establishing call recording consent, and dealing with out-of-state parties in our next installment, subscribe to the PDCflow blog.