Larry Lessig: Right to "document" phone calls

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Lauren Weinstein <lauren () vortex com>
Date: Sat, 21 Jun 2003 08:28:57 -0700
To: dave () farber net
Cc: lauren () vortex com
Subject: Re: [IP] Larry Lessig: Right to "document" phone calls


Bob Schmidt <schmidt () PROVIDER COM> writes:
> In the June issue of CIO Insight magazine (hip supplement to the oversize,
> slick, etherial and largely useless CIO magazine), Larry Lessig relays a
> customer service experience his wife had with a surly airline agent and
> observes, "Every email exchange I have is documented -- why don't I have
> the right to document phone calls?"

Here are some answers (or at least thoughts) on this for IPers.

It's actually pretty easy to document most phone calls, even in
California.  All you have to do is get the other party's permission,
which in most cases simply means notifying them at the start of the call
that it will be recorded.  We hear such announcements all the time
from businesses.  Individuals can do it too -- even manually at the
start of the call.  Continuing the call is generally considered to
indicate that permission has been granted.

> He points the finger at "states such as California, Illinois, Michigan and
> Pennsylvania that require the consent of all parties" before a call can be
> taped. This raises lots of questions.

Ah, now, if we're concerned about *secret* recordings, that's
something else again.  And putting on my PRIVACY Forum hat,
I for one am glad that California is an all-party permission state.
The abuses that occur in other states without recourse, including
recording of personal calls that are then posted to the Internet,
etc. are absolutely sickening.  The victims of such recordings
in one-party states sometimes ask what legal rights they have to
protest such actions -- the answer is in most cases none.  Thank you
California for not falling into that category!

> Did Larry leave out any states with such requirements? Where do the Feds
> stand on this issue, and should phone technology be equalized with email
> when it comes to documentation?

Complete lists of one- vs. multiple-party states are easy to
find with a quick Google search.  Federal law is one-party permission.
Interstate calls enter a gray zone where different courts have
ruled in different ways when one state involved with the
call is multiple-party and the other is one-party.
The famous Tripp/Lewinski taping is such an example.  Remember
Tripp and Lewinski?  I do not think that the "harmonization" of
phone and e-mail rules would necessarily make sense or be a positive
development.

> Oh, and what about global phone calls across national borders, and what
> about VOIP calls - are they treated differently today than POTS calls and
> should they be?

This is more speculative.  International calls in general have
traditionally carried a relatively low expectation of privacy,
for various reasons.  As for VOIP, I haven't seen case law on this,
but I suspect it is likely that such calls would fall under the normal
rules, at least if the telephone network were involved on at least
one side of the communication (that is, a pure PC to PC call that
didn't touch the phone net would be an interesting case).

> Are/should commercial phone calls be treated differently than personal
> phone calls so that they have to meet a lesser privacy burden when a
> consumer unilaterally records a call with a company vs. with another
> individual or vs. a company unilaterally recording a call with the
> consumer? Is notice enough and if so, can a consumer give notice to a
> customer service agent before recording?

As far as I know (I'm not a lawyer, so this isn't legal advice), and
as I mentioned above, you can tell a service agent that you're
recording the call "for 'quality assurance purposes' if you like!"
and if they agree to continue the call things should be fine.
If they refuse to continue then you get to decide how (or if) you
want to deal with that company in the future.

> And speaking of recording, if you don't use a tape recorder, but instead
> use a computer to make the recording, is this treated any differently under
> the law?

The technology used should not matter.  The issue is "recordings"
-- not whether they were made on computers, tapes, or even vinyl
disks.  In the ongoing Scott Peterson murder case here in
California, it was revealed that computer servers were used to
record his calls, and all of the standard legal issues regarding
law-enforcement, warrent-based, third-party phone recordings
appear to be in play.  It can be expected that this would also be
the case for non-law-enforcement recording situations which are the
topic of this discussion.

> And are phone calls made by employees on company owned telephone equipment
> subject to the same standard as company provided email (or is it vice versa)?

This is a rather complex area that I won't try address in
this message.  Anyone interested can contact me directly for more
information about the factors that come into play regarding this.

I hope this note is of some help.

--Lauren--
Lauren Weinstein
lauren () pfir org or lauren () vortex com or lauren () privacyforum org
Tel: +1 (818) 225-2800
Co-Founder, PFIR - People For Internet Responsibility - http://www.pfir.org
Co-Founder, Fact Squad - http://www.factsquad.org
Co-Founder, URIICA - Union for Representative International Internet
                     Cooperation and Analysis - http://www.uriica.org
Moderator, PRIVACY Forum - http://www.vortex.com
Member, ACM Committee on Computers and Public Policy


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