If you think you might be the victim of illegal phone recording, keep reading. You may be entitled to substantial compensation. How many times have you placed a call to a customer service number and heard the recording, “This call may be monitored or recorded for quality assurance purposes.” In many states, businesses need to inform you before recording a call. When you hear that recording, chances are that businesses are following the law.
What about businesses that don’t tell you they are recording a call? In several states recording calls without your consent is illegal.
States that require “all party” or two party consent are:
- New Hampshire
- Hawaii (the Hawaii law is a bit more complex)
Some companies use an automated beeping noise to let consumers know they are being recorded. That may not be enough, however. Ditto for pre-recorded messages that contain a disclaimer but allow the caller to press any button to exit the script. There is a risk with those systems that the caller may press “0” or some other button to get a live operator before the warning was played.
Illegal Phone Recording – California Invasion of Privacy Act
California’s Invasion of Privacy Act was passed in 1967 and is part of the state’s penal code.
In passing the law banning recording of phone calls without the consent of both parties, the California Legislature didn’t mince words. “The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society The Legislature by this chapter intends to protect the right of privacy of the people of this state.”
California’s commitment to protecting its citizens goes well beyond the Penal Code. The California Constitution makes one’s right of privacy an inalienable right!
California’s privacy law is one of the toughest in the nation. One part of the statute says that if you have a reasonable expectation of privacy, the other party to the call can’t record that call without first informing you. Violations of the California Invasion of Privacy Act (CIPA) are punishable by the greater of $5,000 or triple actual damages. Each call recorded or monitored without a proper warning is a separate violation.
How do you determine whether you have a reasonable expectation of privacy? There is no black and white test. Courts in California have been quite liberal in CIPA’s interpretation, however, and have worked hard to protect consumers.
Some of the factors used by courts include, (1) whether a warning was given at the beginning of the call, (2) who initiated the call, (3) the purpose of the call, (4) whether confidential information was discussed or disclosed and (5) the relationship between the parties.
Cell phone callers have even more rights. A newer section of the statute enacted in 1992 simply prohibits recording cell phone calls without the consent of both parties. There is no requirement that a caller had an expectation of privacy.
California Cell Phone Call Recorded Without Permission?
We are investigating violations of the California Invasion of Privacy Act involving cell phone calls. If your call was monitored or recorded without permission, you may have a case. It doesn’t matter if a business called you or you called the business. Both outbound and inbound calls involving a California caller require disclosure prior to recording.
Violators of the California Invasion of Privacy Act can be forced to pay you significant compensation. $5000 (or more) for each illegally recorded call.
CIPA and Other Illegal Phone Recording Calls Best Handled as Class Actions
Finding a lawyer to handle a single illegal phone recording case is difficult. The attorney’s fees needed to take on a big corporation or bank would be many times more than the $5000 award you might win.
In a class case, however, a single lawyer or team of lawyers gets approval from the court to represent everyone who may have been illegally recorded. Depending on the state privacy laws where the case is brought, the court will approve a class if everyone has similar claims.
In the case of the California Invasion of Privacy Act, that makes cases much easier to bring when cell phones are involved. If a customer’s landline phone was illegally recorded, each potential class action would have to prove that he or she had a reasonable expectation of privacy. That makes these cases difficult as a class, however, since no two people are likely to have the same issue.
Courts are split on allowing non-cell phone cases to proceed as a class action. Absent commonality between the potential class action clients, many judges are likely to reject landline CIPA classes.
Because the California privacy law does require one to prove an expectation of privacy in cell phone cases, it is easier to find a judge willing to sign class certification.
Debt Collectors Often Guilty of Illegal Phone Recording
Recently we noticed a big trend of debt collectors recording phone calls. Debt collectors may have reason to record calls of people who owe money but most courts say these still must follow state privacy and phone recording rules. Financial services firms facing big claims in recent years include GC Services (collection agency), Capital One and HSBC Card Services.
Debt collectors and banks are arguing cases across the country today claiming that federal debt collection laws supersede state privacy laws. This battle is likely to continue for several years before a clear answer is obtained. We still believe that banks and collection agencies are not entitled to special treatment. They should follow the law like every other business.
Do You Work at a Call Center Illegally Recording Calls?
Most of this post has been oriented to callers who believe their calls were being illegally recorded or monitored. In fact, they are the only people who can sue for damages under the California Invasion of Privacy Act and other similar state laws.
Unfortunately, it is hard for the public to ever know that they were illegally monitored or recorded. If you aren’t told, how do you know?
We are always looking for whistleblowers – concerned, honest people who work inside call centers. If you were recently fired or quit a company that illegally records callers, let us know.
We can’t pay witnesses but we may be able to compensate you for your services as a confidential non-testifying consultant. Without your help, many of these illegal invasions of privacy would never be uncovered. We need your help. The public needs your help.
Illegal Phone Recording Case Study – Ades v. Omni Hotels
Steven Ades and Hart Woolery filed a lawsuit against Omni Hotels Management Corp for violating California’s prohibition on recording cell phone calls with the consent of both parties. Both said they didn’t know they were being recorded when calling Omni’s toll free number. The two claim that Omni records all inbound consumer calls and fails to obtain consent or inform callers of the recording. They were upset because they provided name, address and credit card information not knowing that their information was being recorded.
Their case became a class action meaning it was filed on behalf of all California consumers who may not have known their calls to Omni Hotels were being recorded.
Omni’s call center is located in Nebraska. Omni challenged the lawsuit by claiming that Nebraska’s laws should apply since their call center was located there. Of course, Nebraska just happens to be a one party consent state meaning no warning needs to be given callers.
The company also argued that any failure to obtain consent or inform callers of monitoring occurred where the call center is located and not in California.
The court didn’t buy Omni’s argument. U.S. District Court Judge Christina Snyder ruled that “given California’s clearly expressed interest in protecting its residents from secretly recorded phone calls, which the California Supreme Court has found would be seriously impaired by the application of less protective privacy law, and the less clear showing that Nebraska’s interests would be severely impaired by application of California law, the Court finds… [that]California law applicable to this case.”
The case was a victory for consumers. Businesses can’t illegally record or monitor phone calls by simply setting up shop in a state with open or one party consent.
Call to Action – Illegal Phone Recording
If you live in a state that requires consent or notice prior to recording a call and you did not receive such a warning, your call may have been recorded illegally. Click the Submit button on this page for a no obligation case evaluation or call us today. You may be entitled to substantial compensation.
If you work in a business that is illegally monitoring or recording phone calls, we want to hear from you as well. In certain circumstances, we can compensate you as a confidential consultant to help us identify and prosecute offenders.
Have questions? You can contact the author of this post, attorney Brian Mahany by email at or by phone at (414) 704-6731. All inquiries are kept confidential and protected by the attorney – client privilege. Don’t worry, we do not record calls! (You may also wish to visit our mortgage company TCPA post for more information about robocalling.)
Whatever you do, act quickly as California gives victims of illegal phone recording just one year to file a lawsuit.
MahanyLaw – America’s TCPA and CIPA Privacy Lawyers
(We accept illegal phone recording cases in many states. Cases in California are prosecuted jointly with our partner law firms located in both southern and northern California.)