Recording Calls: What is the law?

Recording Calls: What is the law?

Indiana is considered a “one-party consent” state. (IC 35-31.5-2-176). This means that it is legal to record a telephone call as long as at least one party to the conversation gives their consent. For example, if there are two parties to a telephone call then this standard is satisfied if one party chooses to record. A third-party who wishes to record the conversation must obtain consent from one of the parties involved in the conversation before a recording may be initiated. However, a minority of states utilize an “all-party consent” standard.  Typically, in these all-party consent states, every party to the telephone conversation must consent if someone wishes to record. But it is important to check your state laws as there can be exceptions. For example, Illinois makes it illegal for someone to record a private electronic conversation to which he or she is not a party unless he or she obtains the consent of all the parties to the conversation. (720 I.L.C.S 5/14-2(a)(3)) Similarly, in Montana, a person may not record a conversation without the knowledge of all parties to the conversation, but this does not apply to persons given warning of the recording; if one person provides the warning, either party may record. (Montana Code 45-8-213(2)(iii).

Conflict of Law: What happens when one state is a one-party consent and the other is an all-party consent?

Often times, telephone calls are conducted between parties who reside in different states. An issue may arise as to which law applies. While it is not entirely clear, some courts have been presented with this issue. For example, the court in Kearney v. Salomon Smith Barney, Inc applied a balancing test to determine which party would suffer more harm in the application of the opposing state’s law. (137 P.3d 914). The court held the all-party consent standard should apply since a one-party consent standard would harm the privacy of those residing in an all-party consent state more severely. Id. Another standard that courts have applied is choosing the law of the state where the recording took place. (State v. Fowler, 127 Wash. App. 676, 111 P.3d 1264 (2005), aff’d, 157 Wash. 2d 387, 139 P.3d 342 (2006)). Even though the law of the all-party consent state was stricter, because the recording took place in a one-party consent state the latter law governs. Id. If there is any confusion, it is highly recommended to investigate the laws of not only your own state, but the state of the other party whose telephone conversation you wish to record.

How does the Apple iOS 18.1 AI feature come into play?

As discussed more thoroughly in our recent blog post here, Apple has launched a new AI feature in which a user can record any telephone or facetime call, and the recording will be transcribed. If a party chooses to initiate a recording, Siri will announce to all parties that a recording has begun. However, if a new party joins the call after the recording has begun, there will be no renotification. For states that have a one-party consent standard, this does not have any consequences since only one party to the conversation needed to consent, and this is satisfied by the recording party. For conversations that involve a party from an all-party consent state, the situation may be trickier. In a strict compliance all-party consent state, one may need to first formally request consent before initiating a recording using the Apple AI, and if a party joins the conversation in which a recording has already begun, it should be the recording party’s duty to first request consent before proceeding into conversation. But again, some “all-party consent” states have exceptions for those who are a party to the conversation in which they may only need to provide a warning that they are recording.

If you have any questions or want assistance with information relating to recording telephone calls or the new Apple iOS 18.1 AI features, please reach out to one of our attorneys at McNeelyLaw LLP by calling (317)825-5110.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.