Telephone Call Recording Rules for a California Business
Ron Stormoen
Question Presented: We are a California business recording calls for quality assurance. What's the protocol for letting the caller know that they are being recorded?
Short Answer: It should be sufficient at the beginning of the call to state: “This call is being recorded for quality control and company training purposes.” If the caller continues, then they impliedly consent.
If the business wants to be over the top careful, it might add: “This call is being recorded for quality control and company training purposes, do you consent?” And get a yes. Or “This call is being recorded for quality control and company training purposes and your continuing with this call is deemed your consent.” Then, you don’t need a “yes.”
As set forth below, some take the position that actual consent (“yes, I consent to the recording”) is necessary, based on the statute (cited below). But, as also set forth below, case law, including the most binding authority, the California Supreme Court, says the first statement above is sufficient. Implied consent is fine.
Longer Answer: The Penal Code for recordings and consent provides in pertinent part:
“(a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) per violation, by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.” (See full text at Penal Code section 632.)
Generally, California is a two-party consent state. Both parties must consent to a recording.
But what does “consent” mean with a business recording a call context? Is it only express (“I consent”) or can it also be implied (informing the person that the call is being recorded and then continuing).
Some argue that consent means you must both inform the other person they are being recorded (the language above) and that they must expressly consent (say they agree). However, those taking that position do not seem to cite to any legal authority for their position other than Penal Code 632, which does not define consent.
Importantly, case law interpreting Section 632, for a business recording calls, says that consent can also be implied by simply stating at the beginning of a conversation that the call is being recorded. When the other party continues with the call, they have impliedly consented.
The California Supreme Court has stated: “ As made clear by the terms of section 632 as a whole, this provision does not absolutely preclude a party to a telephone conversation from recording the conversation, but rather simply prohibits such a party from secretly or surreptitiously recording the conversation, that is, from recording the conversation without first informing all parties to the conversation that the conversation is being recorded. If, after being so advised, another party does not wish to participate in the conversation, he or she simply may decline to continue the communication. A business that adequately advises all parties to a telephone call, at the outset of the conversation, of its intent to record the call would not violate the provision. (Emphasis added.) (Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 117-118.)
Another California Court of Appeal recently held the same and defined implied consent this way:
“[I]mplied consent is ‘consent in fact’ which is inferred ‘from surrounding circumstances indicating that the [party] knowingly agreed to the [recording].’ [Citations.] ... The circumstances ... will vary from case to case, but ... will ordinarily include language or acts which tend to prove (or disprove) that a party knows of, or assents to, encroachments on the routine expectation that conversations are private.” (Emphasis added.) (Rojas v. HSBC Card Servs. Inc. (2023) 93 Cal. App. 5th 860, 882-885.)
In other words, the short answer set forth above is sufficient. Just inform the person of the recording.
Again, if for some reason, one feels the need to go beyond that, inform the other person that the call is being recorded and do they consent and get a yes, or the other alternative suggested above, though it does not appear that either is required.
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