If a business records a phone call, are they implying their consent so that I may also record the phone call?

For example: When calling many businesses now days there is an automated recording that says “your call may be recorded…” In either 1 or 2 party consent states, if a business is recording the call it seems they are consenting to the call being recorded. Can I record a call when a business or individual is already recording the call? Or, would I have to get their verbal consent?

Asked on July 15, 2010 under Business Law, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

As I am sure you already know from your question, California is a two-party consent state.  In other words, California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation.  The statute, which falls under the Penal Code section 632, applies to "confidential communications" or conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation.  I would always err on the side of obtaining consent.  Your consent in those situations is implied by remaining on the phone.  And although I understand your reasoning that then their consent must also be implied I would make it a practice to state that you are also recording the conversation at the beginning of the call.  Good luck.


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