Do you need consent to record business calls?

What federal law allows

The federal Wiretap Act, 18 U.S.C. 2511(2)(d), says: “It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.”

That’s the one-party rule. It sets a floor, and state law can be stricter.

States that require everyone’s consent

Some states require consent from all parties. Two examples, quoted from the statutes:

• Washington, RCW 9.73.030(1)(a): it is unlawful to “intercept, or record any” private communication transmitted by telephone “without first obtaining the consent of all the participants in the communication”
• Florida, Fla. Stat. 934.03(2)(d): “It is lawful under this section and ss. 934.04 - 934.09 for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception.”

These are examples, not a full list. Check the law in each state where your callers and your agents are.

How an announcement counts as consent in Washington

Washington spells out how all-party consent can be obtained. RCW 9.73.030(3): “Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.”

Note the last part: in Washington, the announcement itself has to be on the recording.

What this means for a call operation

In pay-per-call and call routing, one call can pass from a campaign number to a buyer’s call center, and more than one business may record it. A few practical points:

• Decide who records. If the platform, the publisher and the buyer each record, each one is recording.
• Play the announcement before the conversation starts, and keep it on the recording.
• When callers and agents are in different states, which state’s law applies isn’t always clear. Ask counsel before you rely on one-party consent.
• Recordings and transcripts are records of what was said. Decide who can access them and how long you keep them.

What this page does not decide

This guide doesn’t tell you which state’s law governs a particular call, and it isn’t a full survey of state recording laws. It doesn’t cover recording rules for regulated industries or for calls outside the United States. For a specific campaign, ask counsel.