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Comment by rbecker | Hacker News Reader

> Pushing for an answer on how one of my apps can have a watch keyboard, but the other cannot, they could only "discuss via phone".

What would Apple's response be if you started with "This call may be recorded"? Is recording without notice legal in any state?

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From what I know, the legality if this differs between state. In some you need consent from both parties, in others only your own.

Given their hesitance to official statements, I'd guess the call would be terminated immediately.

I made https://callrec.app just for that. It records calls for you and emails you the recording.

I made it just for me, but it works well enough for recording outbound calls.

I believe they're legal in any single-party-consent state, but I honestly don't know how that plays when the other person is in an all-party-consent state.

but if they say this call may be recorded aren't you consenting by continuing the call?

I believe so. But one can use "By continuing this call, you consent that it may be recorded" just in case.

When I called the electric company yesterday the first thing that was stated on the IVR was, "If you don't want this call recorded, please let the representative know."

I thought that was nice. New to me.

I'm wary of the fact that it didn't actually say your phone call wouldn't be recorded.

Now, that raises an interesting question I hadn't considered before. If you call a service that has an automated call recording consent message does that consent message imply that you are also allowed to record the call with no further notice, if you so choose? Both sides know that at least one recording is being produced by continuing the call; do additional recordings require additional consent? Has this ever actually been tested in court?

Depends on the state. But that opens up room for some jurisdictional arbitrage: an app that routed the audio of your call to servers in a state that allowed single-party permission, and record the audio there.

In California, it is.

California is a two-party consent state[0], which means everyone on a phone call must agree to it being recorded before it can be recorded.

In general, many more US states are one-party consent[1], which means that only one member of the conversation has to agree to the recording.

[0]: https://en.wikipedia.org/wiki/Telephone_call_recording_laws#...

[1]: https://en.wikipedia.org/wiki/Telephone_call_recording_laws#...

> many more US states are two-party consent[1]

ITYM "one-party" here.

I did, thanks.

Limiting the question specifically to "can you record your own phone calls for your own use", and ignoring questions about what you can do with the recordings (which is where things like CCPA or GDPR would apply), there are two regimes which cover the vast majority of telecommunications law: one-party consent and two-party consent. (India doesn't allow recording at all, but that's because they're stuck in the Ma Bell era of telecom law.) One-party consent means one party - i.e., yourself - needs to consent to recording for the recording to be legal. The latter means all parties need to consent to recording. (Evidently "two-party consent" was coined before conference calls were a thing.)

About three quarters of the US is one-party consent but a quarter are two-party consent. California is part of the latter group and if any party to the call has California residence, then you need consent from all parties to the call before you can record. Yes, this has gone up to California supreme court. Yes, this includes all of the FAANG companies. So you would need some kind of notification that you were recording and for the person on the other line to consent to the recording, regardless of where you live, simply because Apple employees live in California.

(Depending on jurisdiction, there are exceptions for a party to a call to record the call if it has something to do with specific crimes, but "violating antitrust law" isn't one of them.)

I don't see the Federal Supreme Court weigh in on this, and without that I don't see how California can impose it's laws on people out of state. It's no different from any other law-- take open carry gun laws as an example. A state that prohibited open carry would not be able to assign liability to someone that open carried in a state where it was legal. It really doesn't matter what the California Supreme court says, they don't have authority outside of California. I suppose they could make laws about how such recording could be used if they entered in California, but not much else.

The problem I see is if you’re recording the call for legal reasons, you’re probably going to court in California where it wouldn’t be admissible even if they wouldn’t be able to charge you.

I'm thinking more about this specific situation of getting a formal record of what Apple tells developers. My suspicion is that if lots of people could compare notes there'd be some inconsistency. Certainly they don't bully folks like Netflix around because loads of people would suddenly become interested in Android if apps like that disappeared. Also California law would be irrelevant in a Federal class action suit.

Let's say you're calling Apple support and your call is routed to India (which seems to be under one-party consent), do CA laws still apply?

If the answer is "you're talking to an Apple representative, a company under californian jurisdiction", then consider the following thought experiment: If I'm on the border of two countries, and say something illegal in one, legal in the other; then I cross the border without hanging up and repeat the same thing, what jurisdiction(s) does this fall under?

I have heard that in a two-party state if one party says they are going to record the call the other party may record the call as well. I’ve also heard “This call may be recorded” interpreted as permission since it says “may” and not “might.” I’m not a lawyer and don’t know if any of this would fly, but it was interesting to me.

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