Assuming a two-party consent state.
If a company notifies you that all calls are (or may be) being recorded, can you then record your conversation with the customer service representative without notification?
Rationale: notification has already been served and there can be no assumption of privacy on the CSR's part.
It depends on how the law is worded. CA Penal Code 632 says:
(a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) per violation, by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
[...]
(c) For the purposes of this section, “confidential communication” means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes [...] any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
[emphasis added]
If you're told that a conversation may be recorded, then you can reasonably expect that the conversation may be recorded, so the California law would not apply to it.
A further issue is interpretation of "may". It is ambiguous as to whether it means "might" or "can". If the other party says "This call may be recorded", and "may" is interpreted as "can", then the other party has consented to the call being recorded. A case where the passive voice could have significant consequences; if they were instead to say "We may record this phone call", then, depending on the state law, things might be different.
No. Logically, your consent to their recording is not the same as their consent to your recording. It's a question of who has the right to make a copy. If you don't want them to record you, stop talking as otherwise you have given implied consent. If they don't want you to record them, you first have to tell them you're recording, so as to obtain [or infer] the necessary consent.
(Expanded discussion) By comparison, if you're sitting face-to-face and whip out your recorder when they whip out theirs, that's clearly not a "secret" recording by either of you. If, however, your recorder is hidden in your purse, and not all parties consent to being recorded, that would be a felony in some states. By analog, unless the CSR in the OP's scenario knows of the second recording being made by someone else on the line, making it would almost certainly be a violation.
Sample of such a law: MA General Law c. 272 s. 99, in part:
(B)(4) The term ''interception'' means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication;
(B)(3) The term ''intercepting device'' means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication... (not including hearing aids or telephone instruments provided by or being used by a common carrier).
There are limited exemptions for authorized law enforcement actions, among others not directly relevant here.
Yes. The way the declaration is phrased is to give you notice that they are consenting to recording... your consent from that point on is by remaining on the phone to partake in the recorded conversation. Since they already consent to recorded calls (namely their own) they are assuming that if you did not consent, you would hang up or not respond. Additionally, since many of the calls are recorded for "quality and training purposes" the quality part includes using the specific caller's behavior on the phone with the customers for disciplinary actions if so needed... and they would have to consent to that recording as well.
Yes. There is no reasonable expectation of privacy if the call starts out with a message indicating that the conversation is not private.
For a conversation between two parties, I thought the key question was whether or not both parties have a reasonable expectation that the conversation may be recorded. If one of the parties obtains permission of the other party to record the conversation, or simply informs the other party that the conversation may be recorded, then should logically establish that there can be no expectation by either party that the conversation will not be recorded. Thus, even in a two-party consent state, it would seem that as long as one of the two parties obtains consent to record or notifies that they may record the conversation, then the expectation of privacy has been eliminated and no further consent should be required. Make sense?
