In most states, one party to a conversation lawfully may record it without letting the other party know. But, along with several other states, California is a "two party" state - both parties must consent to the recording. So ,what happens when one party to a call is in California, and the other party is recording in a "one-party" state?
The California Supreme Court said today in Kearney v. Salomon Smith Barney, that a business located outside California may violate California law by recording a phone call with a California-based person. However, the Court emphasized that the law does not apply when the business announces that calls are recorded:
California law does not totally prohibit a party to a telephone call from recording the call, but rather prohibits only the secret or undisclosed recording of telephone conversations, that is, the recording of such calls without the knowledge of all parties to the call. Thus, if a Georgia business discloses at the outset of a call made to or received from a California customer that the call is being recorded, the parties to the call will not have a reasonable expectation that the call is not being recorded and the recording would not violate section 632.Now you know why you hear "calls may be monitored or recorded for quality assurance purposes" at the beginning of a call. You also now know why employers who record California employees' conversations cannot do so without their consent.*
* As the Court noted, there are narrow circumstances under which secret recording is permitted:
Other provisions of the statutory scheme identify a number of limited circumstances in which secret recording by one party to a communication is permissible, such as when the recording is made “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m [making obscene phone calls with the intent to annoy]” (§ 633.5), or when a victim of domestic violence, acting pursuant to court authorization, records “any prohibited communication made to him or her by the perpetrator” of domestic violence (§ 633.6, subd. (a)).
