Campano Law Group Blog: Is anyone else listening in on this conversation?

California is very protective of the rights of its citizens. One is a right to privacy when speaking on the phone; however, like many laws, there are exceptions so do not assume all calls are confidential. This brief article will not address any of the exceptions which would allow someone to record or listen in on your call. Rather, this article will focus in on when a person makes a call to a business and the right the caller may have that the call is not listened in on or recorded.

Generally, California Penal Code 632 prohibits the recording or eavesdropping of confidential communications without the consent of all parties. A case recently decided by the California Appellate Court involved a customer who called a business and spoke with the company representative.SeeAmanda Kight v. Cashcall, Inc. It is an interesting case because it affects almost anyone who has called a company and spoken with a representative. While on the phone the caller claimed not to be aware the call was either being listened in or recorded by a company supervisor. The customer later found out the call was recorded or listened in on and believed his/her right to privacy was violated. A lawsuit followed. Two interesting topics were raised by the Court that may be of interest to people making calls to companies and to companies with this practice.

First, the Appellate Court addressed the question of who is a "party". The business claimed there was no eavesdropping by a third party. i.e. the supervisor, because the supervisor and company representative both worked for the company. Therefore, the call was listened in by one party, the company. Interesting argument except the Appellate Court disagreed and opined that a person under the statute included both a person and corporation. Next, the Appellate Court also found no explicit exception that allowed a company to monitor phone calls, even if for a legitimate business purpose, which brings us to the second issue.

In the second issue the company argued the caller could not have expected the conversation to be confidential because the company discloses the call may be monitored or recorded. This disclosure is very typical of what a lot of us hear when we call almost any form of business. But, even with the purported disclosure, the Appellate Court held that the disclosure was not adequate “as a matter of law”, a term of art. According to the Appellate Court, the company had the burden to prove they did all they could to make it clear the calls were being recorded or monitored. The company, however, according to the Appellate Court, did not meet its burden “as a matter of law” because (1) the company could not prove that all calls made to and from the company gave a disclosure; (2) the specific disclosure used by the company suggested that only the current call was being monitored or recorded and not any future calls or even transferred calls; and (3), it was possible for a caller to avoid hearing a disclosure at all by pressing “0” to get an operator.

To sum it up, if callers expect their calls to be confidential they should make sure they know who or what is listening or recording their calls. For companies, make sure all calls to and from your business to customers give an adequate disclosure and try to prevent customers from bypassing the disclosure when the customer calls your company and searches for that all too common “press zero for the operator” option.