We’re used to our data being collected all the time, right? Between social media, website cookies, and Siri listening to our every word, it’s a privacy free-for-all.
Or is it? Phone calls — specifically, recording phone calls — are an exception to data collection. While recording phone calls is common, doing so without the other person’s consent could land you in legal trouble. (And who wants to end up in court because one of your reps hit ‘Record’ too quickly?)
Call recording compliance — the laws that govern how you can record, store, and use phone call data — is important. Because if you break the law, you may face penalties, fines, or lawsuits. On top of that, if a customer finds out that you recorded a call without their knowledge, you could lose customer trust.
Need to know the basics of call recording compliance? We’ve got you covered. We’ve also got some tips for training your staff and creating internal policies around call recordings.
DISCLAIMER: This article is for informational purposes only and should not be considered legal advice. Be sure to consult with an attorney or legal expert to ensure you comply with the laws in your area.
Call recording laws you need to know in the US, Canada, and the EU
Like many legal matters, call recording compliance is complex, mainly because the laws vary by location. You have to keep that in mind before hitting the ‘record’ button.
One key concept to understand is the difference between one-party consent and two-party consent.
Think of it this way: if you’re driving your own car, you can go anywhere you want. That’s one-party consent. But if you’re on a road trip with a group, everyone has to agree on the destination before you start driving. That’s two-party consent.
With one-party consent, only one person on the call (which can be you) needs to agree to the recording . With two-party consent, everyone on the call must agree. You also need to be aware of how to get consent from all parties in jurisdictions with two-party consent laws.
US States
In the US, some states are one-party consent, and some are two-party consent. (As with many legal matters, the state-by-state differences can make it all quite complicated.)
For example, if you make a call from Missouri, a one-party consent state, you can record the conversation without issue. Most states, including Michigan, Nevada, New York, Vermont, Ohio, and others, follow the same one-party consent rule.
Two-party consent states include:
- California
- Connecticut
- Delaware
- Florida
- Hawaii
- Illinois
- Maryland
- Massachusetts
- Montana
- New Hampshire
- Pennsylvania
- Washington
Some states have additional restrictions around one-party and two-party consent. For instance, while Wisconsin is a one-party consent state, two-party consent is required for the conversation to be used in court. In California, even if you’re calling from a one-party consent state, you must have consent from all parties if you’re calling someone in California.
Laws also change regularly (Oregon had a challenge to its law in 2023), so make sure you get updates from a reputable source.
Canada
If you want to record a call with our neighbors to the north, assume everyone needs to give a polite “yes, eh” before hitting record.
Under Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), you need the consent of all parties to record a phone call.
EU
The European Union has been taking privacy seriously since 2018. The General Data Protection Regulation (GDPR) has a ton of provisions for data collection, including phone calls. It’s Europe’s way of saying, “Don’t mess with people’s privacy.”
Under GDPR, all parties have to consent to call recordings.
5 steps to take to ensure call recording compliance
Since many different laws are in play and it’s hard to keep track, a good rule of thumb is to get consent from all parties whenever you’re recording, no matter where you’re recording from.
Whether you use call recording apps, start a call recording on an iPhone, record calls on an Android, or use a VoIP provider like OpenPhone — the same rules apply. It’s not worth the risk of breaking the law in any jurisdiction.
You should also make sure that everyone on your team understands call recording laws and stays compliant. It’s much easier to follow a consistent process for all calls than to create state-specific rules.
If you’re creating internal policies, checklists, and SOPs, here are key points to include for inbound and outbound calls.
1. Inform all participants
At the start of the call, you or your employee should let the other person know that the call is being recorded. In the US, the Federal Communications Commission (FCC) has defined three “acceptable forms of notification” for recording electronic communications. These are:
- Prior verbal or written consent of all parties
- Verbal notification at the start of the call by the recording party that a call is being recorded (this is the most common method)
- An automatic audible beep tone repeated regularly during the call
Most companies use an automated recording to cover verbal notification. (How many times have you heard the line, “This call may be recorded for quality assurance or training purposes”?)
For example, in OpenPhone, you can add a call recording disclosure to your phone menu greeting and take advantage of automatic call recording. You could also have employees read a disclosure script before they start recording.
2. Get consent from all parties
Consent is a two-step process. First, you have to let people know that the call is being recorded. Then you have to get their consent to record.
Consent can happen in one of two ways. You can directly ask, “Are you okay with this call being recorded?” and the person should give a verbal response. Alternatively, passive consent happens when you inform people that the call is being recorded, and if they choose to stay on the call, it’s assumed they consent.
You might use active consent if you’re recording mid-call, like if you didn’t start recording at the start of the call but then ask if it’s okay to do so. Passive consent is common with automated recordings, where the notification happens before any conversation takes place.
💡Case in point: In 2021, LoanMe recorded an 18-second call with Jeremiah Smith without his consent. The case, Smith v. LoanMe, Inc., reached the California Supreme Court, which ruled 7-0 that California law requires the consent of all parties before recording a call.
3. Keep data safe
Call recordings should always be stored securely to prevent unauthorized access to sensitive information.
OpenPhone protects your data with several security measures, including AES-256 encryption, an industry-leading standard. We’re also SOC 2 compliant, which means we go through third-party audits that ensure we protect customer data against cyberattacks. Your conversations are safe with us.
4. Create a policy
A well-documented call recording policy reduces the risk of employees recording calls illegally. Your policy should cover:
- The purpose of recording calls with customers
- The procedure for informing customers and obtaining consent
- How long calls will be stored and who can access them
Make sure your call recording documentation is easily accessible to all employees. Include call recording procedures during new hire onboarding and make it clear that illegal call recordings can have serious consequences for your business.
Lay the foundation for compliance with this customer service quality assurance checklist.
You should also review your policy annually. If new regulations pass or you enter a new market, you might need to update your policy to stay compliant. However, if your default practice is to always notify customers and obtain consent, you’re less likely to need adjustments.
5. Monitor compliance regularly
Regularly monitor customer service recordings and sales call recordings to ensure reps are following your call recording policy. If reps need to follow a script to get consent before recording, make sure they’re doing so. This can be a bit tricky since you won’t hear anything on the call that happens before the employee hits ‘Record.’
With OpenPhone, you can easily set up call shadowing using group calling. One employee can listen in on another employee’s phone call in real time. That way, you can make sure the script is being followed and the customer gives consent before the call is recorded.
If you’re using a pre-recorded disclosure on your phone menu, check to make sure it’s working when callers dial in.
Compliance doesn’t have to be a pain with OpenPhone
Recording calls makes sense for several reasons. It allows you to review your conversations with customers to make sure you don’t miss anything — which leads to better customer service. Recordings are also great for internal training since you can review calls individually or with the team.
When recording calls, you should be focused on the benefits to your business, not the nuances of complying with different laws. With OpenPhone, you can simplify call recording compliance with a pre-recorded menu greeting and robust data security. You can also set up call flows to direct your customers to the right department.
AI-generated call summaries and call tags help organize call information so you can identify which topics are driving the most customer calls. Plus, OpenPhone can sync call information with your CRM (like Salesforce or HubSpot), so you can easily manage your relationships with your customers.
You can check out OpenPhone today by signing up for a free trial.
FAQs
Call recording regulations vary depending on the location. In Canada and the EU, you need the consent of all parties to record a call. In the US, some states are one-party consent (meaning only one person needs to consent to the recording), and some are two-party consent (meaning all parties must consent).
The legal requirements depend on the state. You’ll want to consult a reputable source to determine state-specific laws regarding how to legally record phone calls and obtain consent from all parties.
The FCC covers the acceptable forms of notification for call recordings. It requires one of the following: prior verbal or written consent, verbal notification of the call recording at the start of the call, or an audible beep tone repeated during the call.
