Businesses in California and across the country now regularly record or monitor telephone communications with their customers or prospects. They follow this practice for a number of legitimate reasons, including quality assurance and training (also known as "service supervision"), customer protection and qualification, and risk management. This growing trend among businesses has spilled over into the collections industry. Today, many collection agencies routinely record some, if not all, of their telephone communications with debtors and others.
Alongside this trend of collectors using recording technology, however, is another growing trend: a rising wave of lawsuits against collectors in California for their alleged illegal recording and monitoring of calls to debtors in violation of the California Invasion of Privacy Act. (“Invasion of Privacy Act”) (“CIPA”), located atPenal Code §§ 630,sim.Over the past year, consumer advocates have filed a wave of literally hundreds of lawsuits, many of which are alleged class actions. These lawsuits named several California companies, as well as many out-of-state companies, and many were filed against collection agencies already under attack from various TCPA class-action lawsuits.
This article discusses some of the key features of CIPA, some key defenses against alleged liability, and finally, some sensible suggestions on how to manage the risks associated with call recording.
Author Mark E. Ellis is managing partner ofEllis Law Group, LLP. Mr. Ellis is nationally recognized as a leading litigator defending creditors and their representatives in federal and state litigation arising out of debt collection proceedings. To seeTag Ellis' profilefor your detailed resume.
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II. CIPA protects an objectively reasonable right to privacy
CIPA, found in CaliforniaSection 630 of the Penal Code,sim.was enacted in 1967 for the express purpose of "protecting the right to privacy of the people of this State".Article 630 of the Penal Code.The California Legislature stated that with the advent of new devices and technologies used "with the purpose of intercepting private communications", the resulting invasion of privacy through the "use of such devices and technologies has created a serious threat to the free exercise of privacy". and cannot be tolerated in a free and civilized society".I WENT.Several sections of the CIPA, for example, make spying illegal (§631), listen (monitor) and record telephone conversations (§632) or to record cell phone communication without consent (§632.7).
CIPA prohibits various forms of intentional recording or eavesdropping without the consent of all parties. Special,§ 632(a)responsible:
Any person who intentionally and without the consent of all parties involves aconfidential communication, eavesdrop on or record confidential communications using any electronic amplifier or recording device . . ." (Emphasis added.)
Section 632(c) of the Penal Codedefines "confidential communication" as follows:
any communication made under circumstances that reasonably indicate that a party to the communication wishes it to be limited to the parties involved in the communication,but excludes any communication made. . . in any other circumstances where the parties to the communication could reasonably expect the communication to be heard or recorded.(Emphasis added.)
CIPA then protectsconfidential communications only.Kearney gegen Salomon Smith Barney, Inc.. (2006) 39 Cal.4th 95, 117 (Interpretation§ 632).A participant in a telephone conversation is in violation§ 632when monitoring or recording a confidential conversationonlyif you do not inform everyone else involved in the communication that the conversation may be monitored or recorded.I WENT.em 100, 118.
How to know if the conversation is confidential? Unfortunately, there is no proof in black and white. A conversation is considered “confidential” under§ 632by CIPA only if a party to that conversation has aobjectively justified expectationthat the conversation is not overheard or recorded.Flanagan gegen Flanagan(2002) 27 Cal.4th 766, 768, 774–776;Vera versus O'Keefe(S.D.Cal. 2011) 791 F.Supp.2d 959; 1396;. Whether there is a reasonable expectation that no one will record or eavesdrop on a telephone conversation is usually a given.ver Lute v. CashCall, Inc.(4. Dist. 2011) 200 Cal.App.4th 1377, 1396-97;Lieberman contra KCOP Television, Inc.(2003) 110 Cal.App.4th 156, 169. However, if the facts are not in dispute, the court may decide the matter as a matter of law.ver Weiner contra ARS Services, Inc.(S.D. Cal. 2012) 2012 WL 3632025 (given the circumstances of the call, including its short duration, indicated that privacy is not expected).
Disclosure that a call can or will be "monitored" is considered equivalent to disclosure that a call can or will be "recorded".ver,z.B.,König,Above,200 Cal.App.4th at 1396-1397 (the Court held that there is no distinction for purposes of breach of privacy underArticle 630 of the Penal Codebetween a monitored call and a recorded call). InKönigFor example, Judge Haller, writing for Division 1 of the Court of Appeals for the Fourth Circuit, noted: “For purposes of Section 632, the privacy rights involved are the same whether or not a conversation is secretly recorded by a machine or by a person being monitored. .” In other words, regardless of whether there is a notice that the conversation may be recorded or monitored by a third party, the impact on the listener's privacy rights and their objective expectation of privacy is the same.ibid.
“The confidentiality test is alookone defined in terms of suitability”.cold vs. Supreme Court(1988) 203 Cal.App.3d 1480, 1488 (citation omitted). A person's subjective belief that the call should not be recorded or monitored is not proof.I WENT.If a call is for business or legal purposes, it is not critical.Kearney,Above, 39 Cal.4th at 118. The courts, for example, have recognized that debtors who call about their debts may have an expectation of privacy. Courts considering the question of whether a communication is confidential under Section 632 have considered the totality of the circumstances in determining whether the parties had an objectively reasonable expectation that the conversation would not be recorded or overheard.König,Above, 200 Cal.App.4 bei 1397.
Relevant factors in determining whether there is an objectively reasonable expectation of privacy (i.e., that no one is secretly recording or eavesdropping on a telephone conversation) include, but are not limited to: (1) who initiated the call, (2) the purpose and duration of the call, (3) the customer's past relationships, experiences, and communications, (4) whether confidential information was communicated, and, of course, (5) whether a notice/disclosure/warning was given at the start of the call, otherwise.ver König,Above, 200 Cal.App.4th bei 1397 (other Kearney);verAlso Flanagan,Above, 27 Cal.4th at 776-77 (requiring an examination of whether the son reasonably expected that his private telephone conversations with his father would not be recorded by the father's wife);Nissan Motor Co., Ltd. contra a Nissan Computer Corp..(C.D.Cal.2002) 180 F.Supp.2d 1089, 1093-94 (Conversations between attorneys on matters relating to litigation considered confidential communications under section 632);Volk v. Pedersen(1978) 86 Cal.App.3d 987, 994 (“The nature of the meeting and the manner in which it was conducted are such that the court could reasonably conclude that it was no different from other business meetings of the parties which werenoconfidential.").
Elements of a CIPA violation claim are: (1) an intentional act, (2) recording or monitoring a conversation that a party would not normally expect to be recorded and monitored, (3) without consent, and (4) if the party it has been damaged, but not necessarily damaged.Penal Code §§ 632, 637 Paragraph 2.
A defendant may prevail in a CIPA case by denying one of the essential elements of that claim or by alleging and presenting evidencean affirmative defense. A defendant may invoke and attempt other available defenses, e.g. B. Consent, dirty hands, etc., which may be appropriate given the nature of the claim and the remedy sought.
1. No Expectation of Privacy
The most common defense in a section 632/section 637.2 case is that the claimant did not have a reasonable expectation that his call would not be heard or recorded.Kearney,Above, 39 Cal.4th at 117-118. This isn't really a defense.joya, but the denial of an essential part of the claim. This matter has already been discussed at length in the context of a "confidential communication" and will not be repeated here.
As a consequence of this element, obtaining consent to record or monitor is its own defense, but of course notification and consent also undermines the expectation of the privacy element.ver Kearney,Above, 39 Cal.4th bei 100, 118.
2. No real violation
CIPA provides a private right of action in § 637.2(a); A civil action can be brought by “any person whoinjuredfor a violation of this Chapter," and that person may bring suit against the violator for "(1) $5,000" or "three times the value ofactual damage, if so stated by the actor”.Penal Code Section 637.2(a)(Emphasis added.)Section 637.2(c)states: “It is not a necessary condition of an action under this section that the plaintiff has suffered . . . real damage".
To be honest, even for lawyers and judges, the distinction between injury and consequential damage is not easy, and legal interpretation is not very helpful. However, using the usual rules of legal interpretation, it seems clear that the use of the word "damaged" in§637.2(a)has a different meaning than the phrase "actual damage", which is also found in§637.2(a), is at§637.2(c). Referring again to the legal norms of construction, with a simple interpretation of the legal norm and to avoid exaggeration, it seems that for an author to have any real or legal right to compensation, he must first be "wounded".§637.2(a).
On the other hand, although this is not clear, it is likely that the plaintiff need not have suffered any appreciable, compensable, or even nominal "harm" to make a viable claim. Butcompare FAA v. copper(2012) ___ USA___, 132 S.Ct. 1441 (interpretation of "actual damage" as an artificial term of the Federal Data Protection Act 1974, which does not include material or mental damage).
3. Limitation period
"The statute of limitations for filing a privacy violation action is one year."Ion Equipment Corporation. against nelson(1980) 110 Cal.App.3d 868, 880. The statute of limitations in a cause of action underSection 632 of the Criminal Codebegins when the plaintiff knew, or ought to have known, the wrongdoing of the defendant.Montalti v. Catanzarite(1987) 191 Cal.App.3d 96, 97-98.
4. Consent (express/implicit)
Consent is clearly a defense as the law could not be violated if all parties understood and consented to the recording or monitoring.Kearney,Above, 39 Cal.4th in 100, 118. Bass§ 632(a), any person who intentionallyand without the consent of all partiesconfidential communication via an electronic amplifier or recording device. . .Records confidential communication. . .violates the law and is punishable within the meaning of the regulation.”Kearney,Above,39 Cal.4th at 117 (emphasis added).
If a caller perceives that the call or conversation was or is being monitored or recorded, there is no violation.§ 632because there is no objectively reasonable expectation of privacy.I WENT.em 100, 118;Viennese sausages,Above, 2012 WL 3632025 in *3, footnote 2.Furthermore, by continuing the conversation after said notice, consent is implied.ver Kearney,Above, 39 Cal.4th bei 100, 118.
The California Supreme Court wrote in this regard:
As can be seen from the provisions of article 632, this device does not absolutely exclude the participant of a telephone conversation from recording the conversation, limiting itself to prohibiting him from secretly or clandestinely recording the conversation, that is, recording the conversation without report first. all parties, the conversation will be recorded. If another party, after being notified, does not want to participate in the conversation, they can simply refuse to continue the communication. A company that properly informs all parties to a telephone conversation at the outset of the conversation of its intention to record the conversation is not in breach of the provision.I WENT.at 117, 118 (footnote omitted).
The so-called “service observation” or quality control record is recognized in CIPA's legislative history as an intentional exception to the scope of the law. But, contrary to the opinion of some commentators, it does not appear that defense in general entered the law as a legal defense.König,Above, 200 Cal.App.4th at 461.Even if it's not a defenseaccording tothe legitimacy of the QA record can be important to the defense. In any case where the actor is aware that the call will be recorded and proceeds without objection and nevertheless attends, consent must of course be given.ver Kearney,Above, 39 Cal.4th bei 100, 118.
5. Commercial Clause
Some have suggested this because§ 632has the effect of regulating out-of-state companies doing business in California, may violate the Commerce Clause of the United States Constitution. While this argument has not been definitively ruled out, the California Supreme Court inKearneyraises serious questions about its legitimacy, since the scope of the law only regulates calls to California made to California residents.Kearney,Above, 39 cal.4 at 104-107;ver Also Cephirus v. Saxon Reunion. serv., inc.(ED Cal. 2012) 2012 WL 2046814 em *5-7.
6. Excessive fines
As mentioned above, a violation of the§ 632Y§ 637.2may result in the award of statutory damages of up to $5,000eachRape. Of course, the possible legal damages can quickly multiply into an enormous number. The specter of such ruinous liability has haunted the courts just as excessive punitive damages unrelated to the actual breach have haunted our courts as a possible violation of due process.ver,z.B.,State farm value. Auto Einf. Co. v. Campbell(2003) 538 US 408, 426;BMW of North America, Inc. vs. gore(1996) 517 US 559, 582-583.
The California Supreme Court has recognized that statutory damages awarded without discretion and regardless of actual damages may constitute excessive fines and a violation of due process.example of rel people. Lockyer vs RJ Reynolds snuff company(2005) 37 Cal.4th 707, 726-730;Hall v. Morgan(1978) 22 Cal.3d 388, 399-404 (statutory damages removed as excessive);ver Also Section 3359 of the Civil Code("Compensation for damages must be reasonable in any case..."). As one appellate court explained, the combination of a statutory minimum regime with the class-action mechanism “may extend the potential statutory damages to such an extent that the statutory damages are equivalent to punitive damages, but the damages awarded are essentially no-fault liability, and not for the egregious behavior that is normally required in support of a punitive damages claim.”Parker contra Time Warner Entertainment(2do ciclo 2003) 331 F.3d 13, 22;conformity Starbucks Corp against the Supreme Court(2008) 168 Cal.App.4th 1436, 1451.
This defense is important in class actions and must be invoked to avoid a waiver.ver With respect to: Stephenson(9. Cir. 2002) 41 Fed. aprox. 936, 937.
7. Dirty hands and other defenses
There is no ruling addressing the above defenses and other defenses, such as B. dirty hands, forfeiture, error of fact, and the like, could not give rise to a legal cause of action for invasion of privacy or a common law claim. Whether these are adequate defenses will likely depend on the particular facts and circumstances of the case.
4. Conclusion and Comments
Call recording and monitoring requires that your organization's alert disclosure policies and procedures are in place. Beware of over-reliance on technology to provide flawless warning. The history of debt collection agency litigation, in my experience, is littered with instances where the agency thought it was covered, but the technology failed.
A good practice is to require each receptionist and receptionist to "protect" their technology by delivering a standard verbal reprimand on every incoming and/or outgoing call where a connection is established and a conversation takes place. You may want to adopt an immutable exhortation such as: "Every telephone conversation is or may be recorded or monitored for quality assurance [training purposes]" or something similar. This should be announced at the beginning of the conversation.
Beware of "back" telephone lines where mechanical notice cannot be given. If every phone call is automatically logged every time on every line, the notice must be given every time.
The above article and any articles on this site are not intended to constitute legal advice. Readers should consult an attorney to determine how the law applies to their particular circumstances. Please also understand that the law is constantly evolving and changing. Some of the decisions and legal proposals cited in the article above may be outdated or outdated. Questions or comments about the above article can be directed to the author,Marcos E. Ellis.
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Is call recording breach of privacy? ›
The Delhi High on Thursday said that tapping phone lines or recording calls without the concerned individual's consent is a breach of privacy as enshrined under Article 21 of the Constitution of India.Can you record people in public without their knowledge or permission in California? ›
Remember, even if you're in public, you cannot record conversations between two people unless you have their permission. This includes conversations that you're one of the parties to. If one person in the conversation can reasonably expect his or her conversation to be confidential, this standard applies.Can you get in trouble for recording someone in California? ›
California State Law
Unlike New York and New Jersey, California is a “two-party consent” state. This makes it illegal to record a private conversation unless all parties consent to the recording. A violation of this law is a criminal misdemeanor.
California has some of the strongest laws in the country on wiretapping. Put simply, absent consent of all parties, they are not only not admissible into evidence, but a crime to obtain and allow the “injured party” to sue. Admittedly, damages are hard to prove in these cases.
Federal law requires one-party consent, enabling you to record a conversation in person or over the phone, but only if you are participating in the conversation. If you are not part of the conversation but you are recording it, then you are engaging in illegal eavesdropping or wiretapping.Are call recordings personal information? ›
A recording of a call which contains an individual's voice may be that individual's personal information where the recorded person is reasonably identifiable.Can I record my boss yelling at me? ›
In California, it is a misdemeanor to record a conversation without the consent of all parties to the conversation, which can lead to fines of up to $2,500 and/or imprisonment for up to a year.What is the penalty for recording without consent in California? ›
If the prosecutor decides to charge the crime as a misdemeanor, then the maximum penalties are: imprisonment in the county jail for up to one year, and/or. a fine of up to $2,500.Can you record a public conversation in California? ›
Intent: California law aims to prevent private conversations from being secretly recorded. It is not illegal to record something in a public space and accidentally record a private conversation. Electronic Device: An electronic recording device must be used in order to be charged under penal code 632.Can you record verbal abuse in California? ›
Specifically, code §633.6 allows domestic abuse victims to collect voice and video evidence in their cases. They can record their abusers in private settings if it can be of use in a subsequent Restraining Order Application or prosecution.
What is considered a breach of privacy? ›
A privacy breach occurs when personal information is stolen or lost or is collected, used or disclosed without authority. A privacy breach occurs when personal information is stolen or lost or is collected, used or disclosed without authority.Is it illegal to record a phone call and share it? ›
Implement call recording in your phone system
In conclusion, it's not illegal to record a call or even collect data. However, It is illegal to publicise or share such data with third parties without consent.
If you record your call on your mobile it is not illegal. But if you use that call to blackmail someone or for some illegal purpose then yes you would be liable under law of land.Is it right to record someone without their permission? ›
Recording Individual conversations without their consent is strictly forbidden by law in India. It violates an individual's privacy which is a Fundamental Right under Article 21 of the Indian Constitution.