Roll Tape: Can I Record a Business Conversation Without the Customer’s Knowledge? - May 2018

Terry Jessop & Bitner Newsletter

Issue 51, May 2018

Businesses run on data. Data comes in many forms, most commonly numbers which can be posted on a graph or in a pie chart. Then there is data regarding employee's interactions with customers, which can be captured in real-time, on-premises video recordings, or over-the-phone audio recordings. Indeed, the digital era has made recording telephone conversations as easy as clicking a button. Gone are the days where people had to struggle with using and storing bulky tapes. Now anyone can record any telephone conversation and store it in the Cloud.

Recording phone conversations can be particularly important for businesses. Such recordings can help when training employees and monitoring calls for quality assurance. If there is a dispute about a conversation, the business and the customer can refer to the recording and know exactly what was said, who said it, and in what tone of voice. Further, customers who know they are being recorded are generally more well-behaved. But before you run out and buy the latest recording app or subscribe to a call-tracking service, you should become familiar with the laws that govern the recording of conversations. Some states require the prior consent of every party to a recording. Where does Utah stand?

Single-party vs. All-party consent

Recording laws fall into two categories: (1) single-party consent; and (2) all-party consent. There are 38 states, including Utah, that allow a single party to consent to being recorded. In practical terms, the person who consents to the recording is the one who is doing the recording. He or she does not have to announce to the other party that the conversation is being recorded. This is true for all private and business communications. The Federal government also allows for single-party consent. However, there are 12 states that require all parties to a conversation to consent to recording a telephone conversation.

California vs. Utah

California is one of the states that requires the consent of all parties. If a California customer calls a Utah business, or a Utah business calls someone in California, and the Utah business records or monitors the call without obtaining the other party's prior consent, then the Utah business could be hit with criminal and civil sanctions including actual damages, statutory damages in the amount of $5,000 per violation, together with attorney's fees.

How to avoid this problem

Fortunately, there is a simple solution to this problem. Make sure every customer is aware that they are or may be monitored or recorded. This can be done by way of an automated announcement or it can be done by the individual making or receiving the call. On the flip side, if you ever wonder if you are being recorded, ask the other party upfront. Please contact us if you have any questions about this or any other aspect of Utah business law. We can help.

© Terry Jessop & Bitner May 2018