RadioBanter - View Single Post

December 20th 04, 09:44 AM

In article .com, (Curtis CCR) writes:
| Dan Lanciani wrote:
|
|
| In article . com,
| (Curtis CCR) writes:
|
| | Dan Lanciani wrote:
| | In article
| .com,
| | (Curtis CCR) writes:
| | [...]
| | | In California, any phone call going over the public network
| | | cannot be monitored or recorded without consent of BOTH
| parties.
| |
| | [...]
| | | The restrictions extend to the call center operations here too.
| | | Customers hear "your call may be monitored or recorded..." The
| | | montoring system records all calls on the customer service reps
| | phone,
| | | as well as what they are doing on their computer during the
| call.
| | In
| | | addition to the line for call queues, there is also a line for
| the
| | CSR
| | | to use for direct incoming calls or to make outgoing calls.
| The
| | | monitoring system records all calls on the CSR's phone
| regardless
| | of
| | | what line is used.
| | |
| | | When recordings are reviewed by management, they are always
| | reviewed by
| | | two people. The privacy policy requires that as soon as they
| | identify
| | | anything they hear as personal or otherwise not related to
| customer
| | | service, they stop listening and move on. The direct line on
| the
| | CSR
| | | phone does not have a monitoring notice so the privacy has to
| be
| | | extended to third party.
| |
| | Are you saying that they do record the direct line even though
| there
| | is
| | no notice to the person on the other end? If that is the case,
| | hasn't the
| | law already been violated even if the people reviewing the tapes
| try
| | to
| | avoid listening to "personal" content?
| |
| | Nope. It works out because of the way the law is written. The
| | recording connection to the phone is authorized, and they don't
| listen
| | to personal communications.
|
| I'm still a little confused about this. First, just to clarify, they
| do
| record the direct line without notice to or consent of the person on
| the
| other end, right?
|
| Yes. It's a physical wiretap. Though multiple lines appear on the
| phone, there is only one pair of wires going to it. The system
| phyically taps those wires and records everything.
|
| The primary purpose of the tap is to record incoming call center calls
| to the customer service rep. The other calls are recorded are, I guess
| you could say, a by-product of the legitimate wire tap.

Is the fact that the other recordings are made as a by-product of the
legitimate tap dispositive of their legality? That is, if you made
the exact same recordings by deliberate choice would the situation
change?

| No, unless the agent advises whoever he is taking to on the "direct"
| line that the call may be recorded, the second party does not know.

If this is acceptable, it appears to contradict your prior statement that:

``In California, any phone call going over the public network
cannot be monitored or recorded without consent of BOTH
parties.''

since there is an ''or'' between ''monitored'' and ''recorded''.
(assuming the calls are going out over the public network)

At least I think that was your statement if I'm not confusing the
attributions.

| So are you saying that the two-party-consent requirement
| applies only to personal communications and that it is ok to record
| everything
| as long as you don't listen to the personal parts?
|
| No, I said no such thing.

I didn't mean to imply that you said it; I was merely proposing the only
possible way I could see reconcile your seemingly contradictory statements.
I apologize for using the ``So are you saying'' structure.

| The calls coming into the the customer
| service agent on the call center lines have an announcement that the
| call may be recorded.

Yes, I understand. I am not talking about those calls. I am talking about
the calls on the direct line that have no announcement and are recorded without
the consent of the party on the other end.

| The elements of the California wiretap law say that it's a crime to
| make an unauthorized tap, or, in an unauthorized manner and without
| consent of all parties, attempt to learn the contents of a confidential
| communication. First, the wiretap is authorized and the employees
| knows his phone is tapped.

Does the fact that one party knows his phone is tapped have any bearing
on the requirement that the other party consent?

| Second, no attempt is made to learn the
| contents of any confidential (personal) calls.

I don't believe that it is plausible to equate personal and confidential in
this way. Clearly it is possible to have confidential business calls. Of
course, without the definition of ``confidential'' it is impossible to know
what the law as you state it means. On the other hand, any definition of
``confidential'' that allows one party to the call (or even a third party)
to make the determination that something is not ``confidential'' would pretty
much defeat the all-party requirement.

| If they come up during
| a review, as soon as it is known they are no-notice calls, the playback
| is stopped and the review moves to the next call.

This seems a bit different from what you said before, but I'm still not
completely clear on the procedure. Do they stop playing *all* calls
that were made on the no-notice line or only no-notice calls where
something personal/confidential came up?

| Who exactly is authorized
| to make the personal/non-personal distinction?
|
| The persons that are authorized to review calls. They don't work for
| me, nor do I operate the call monitoring system. I cannot say what
| position these people hold.

I didn't mean the specific people at your company. I meant who in general
is authorized by the law to make such determinations?

| In California, am I as an
| individual allowed to record all of my phone conversations without
| notice to
| the other party as long as I review only the non-personal parts?
|
| If you want to record your phone calls without giving notice, you
| should consult an attorney about the legalities of it.

I don't want to record my calls and I don't live in California. It
was a hypothetical question intended to explore any possible distinction
in the law that might give more latitude to businesses than to individuals.

| As non-attorney
| I would say no. I suppose you could record all of your calls without
| notice, but then you couldn't allow anyone else to listen to those
| recordings.

Interesting. I don't think this is the case in some other all-party-consent
states.

| Go back to what I originally described.

I have, several times. But I'm still unable to reconcile all of your
statements.

| The only recordings here that
| are reviewed are those that come in on the CSR's call center line.
| Those calls have notice to all parties that they may be recorded.

Ok, I think that answers the question I raised above about whether they
stop listening to all no-notice calls or only to no-notice calls where
something personal/confidential comes up. However, I still believe that
making the recording of the no-notice call in the first place is inconsistent
with the statement:

``In California, any phone call going over the public network
cannot be monitored or recorded without consent of BOTH
parties.''

Dan Lanciani
ddl@danlan.*com