An attorney experienced in this field should be able to guide you through this. Since I'm not an attorney, I won't attempt to validate or discredit what others have said, but I have developed call recording products, resold others, and integrated tons of software in these types of systems I'll share some things I learned along the way and wished I had known before I was asked to step into court or paid a visit by law enforcement:
1) You should ask for your users to pay your legal bills when you're sued or charged criminally as a result of using your service, before you allow your users to record a call.
2) You should prevent -technically speaking- anyone on your staff from adding recording rules. Allow them to remove rules only. Be able to prove you weren't the one who added a specific recording rule. This is quite handy in court.
3) Provide a mechanism to validate that the recordings introduced in court were indeed recordings made with your system. Equally, provide a mechanism to prove how calls were not recorded with your system.
4) Understand that Ken's "common carrier" concept is valid, but ask your attorney what steps you need to become and be considered a common carrier. You can't just say you're a telecommunications provider. In some states, that requires becoming a carrier and registering as such both within the state and federally.
5) Party notification involves the parties using the phones, not the companies engaged in a contract. Let that sink in. How will you validate that at least one party using the phone was notified that the call is being recorded.
Some of these become simpler problems if you offer your solution as an on premise based solution as opposed to a hosted one, but these are the big ones that come to mind quickly.
Let me know if you'd like to discuss further of list.
Elliot
-----Original Message-----
From: asterisk-biz-bounces@lists.digium.com [mailto:asterisk-biz-bounces@lists.digium.com] On Behalf Of Ken Rice
Sent: Wednesday, January 28, 2009 3:01 PM
To: Commercial and Business-Oriented Asterisk Discussion
Subject: Re: [asterisk-biz] Call Recording and Legal Issues in the US
Also remember one thing here... As a Carrier, you can claim a common carrier
exemption to torts your client may commit. This is the same principal that
keeps FedEx or UPS out of trouble when someone ships drugs from California
to New York... The same principals were extended to the telecom arena...
However since I doubt a lawyer is actually on this list, you should seek
competent legal counsel from a qualified telecommunications lawyer.
Ken
> From: Matt Florell <astmattf@gmail.com>
> Reply-To: Commercial and Business-Oriented Asterisk Discussion
> <asterisk-biz@lists.digium.com>
> Date: Wed, 28 Jan 2009 14:56:00 -0500
> To: Commercial and Business-Oriented Asterisk Discussion
> <asterisk-biz@lists.digium.com>
> Subject: Re: [asterisk-biz] Call Recording and Legal Issues in the US
>
> Hello,
>
> While there is only a requirement of single-party notification that a
> conversation is being recorded at the federal level, there are 12
> states in the USA that have a requirement that all parties in a phone
> call must be notified that a call is recorded. Here is the list of
> those states:
> - California
> - Connecticut
> - Florida
> - Illinois
> - Maryland
> - Massachusetts
> - Michigan
> - Montana
> - Nevada
> - New Hampshire
> - Pennsylvania
> - Washington
>
> All of the states above allow for criminal charges, and all but
> Montana allow for Civil penalties as well. The penalties vary from
> state-to-state, but often depend on what was done with the recording
> if it has even been kept.
>
> MATT---
>
>
>
> On 1/28/09, SIP <sip@arcdiv.com> wrote:
>> The answer is that, unfortunately for you, you can be sued regardless of
>> what sort of waiver your customer signs. The argument being that your
>> customer may not know all the applicable laws regarding his rights in
>> the situation before he signs the waiver (waivers are not terribly
>> effective protection in court).
>>
>> Whether or not whomever is suing you will WIN the suit will rely mostly
>> on the law, and you may or may not come out okay in a legal position,
>> but the ensuing costs of fighting the legal battle CAN lead to a
>> bankruptcy situation. And, of course, if you're seeking funding rounds
>> or business loans, no one will want to give money to a company that may
>> lose it all in a legal battle.
>>
>> Unless you're absolutely certain of the laws of the states in which you
>> do business, I would recommend against aiding in the recording of calls
>> by customers.
>>
>> N.
>>
>>
>>
>> Peter Beckman wrote:
>>> I'm aware that in some states and in some cases there are differing rules
>>> about who and when a caller or callee can or cannot record a phone call.
>>>
>>> As a service provider, I can easily enable my users to record calls on
>>> demand, for only some of calls, or for all calls.
>>>
>>> The question is, do I need to, in our Terms of Service, specifically say
>>>
>>> "The user is responsible for following all applicable laws regarding
>>> call recording. The user will hold harmless Company and its vendors
>>> partners and subsidiaries for violations of any laws regarding call
>>> recording."
>>>
>>> Or would we be covered by a general you can't sue us clause.
>>>
>>> Please -- no conjecture, only reply if you actually know from a good legal
>>> source the answer.
>>>
>>> Beckman
>>> ---------------------------------------------------------------------------
>>> Peter Beckman Internet Guy
>>> beckman@angryox.com http://www.angryox.com/
>>> ---------------------------------------------------------------------------
>>>
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>>
>>
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