Best Practices in Gaining Consent Before Hitting the Record Button

Videoconferencing is not new. We’ve been “face-timing” with family, friends and colleagues for years. Yet over over the past few months, it has taken on greater prominence and questions surrounding its use in business have become the topic of many discussions, blogs and the like. Be aware, the use of Zoom, Skype and other technology can have both civil and/or criminal liability.

Legally, some of the most frequently asked questions. Can you record? Do all parties need to agree? Are these videoconferences really private? These are just some of the issues to consider before hitting the red “record” button onscreen.

The initial question is whether or not you must attain Consent of the other parties. Consent is governed by both Federal and State laws. So, the answer often comes down to who is taking part in the video conference and if they are located in a one- or two-party consent state. Here’s a look in brief at the Federal statute as well as those in Pennsylvania and New Jersey — two neighboring states with different consent requirements.

• Federal Law
  Federal law (18 U.S.C. § 2511) requires one-party consent, which means you can record a phone call or conversation so long as you are a party to the conversation. If you are not a party to the conversation, you can record a conversation or phone call only if at least one party consents and has full knowledge that the communication will be recorded. The statute prohibits recording conversations with criminal or tortious intent. (1)
• Pennsylvania
  Under Pennsylvania law it is a felony to record an oral or telephone communication without the consent of all parties (with certain exceptions). Offenders are also subject to civil liability. (18 PA Cons Stat § 5703, § 5704 (definition & penalty), § 5725, § 5747 (civil damages)) (1)
• New Jersey
  Under New Jersey law, in-person or telephone conversations may be recorded with the consent of at least one party as long as the recording is not made with criminal or tortious intent. Illegal recording is an indictable crime in the third degree and can also provide the basis for civil damages. (NJ Rev Stat § 2A:156A-3, § 2A:156A-4 (definition & penalty), § 2A:156A-24 (civil damages)) ⁽¹⁾

The use of videoconference platforms is here to stay. Since federal and state laws differ and these conversations often involve parties across the country, it is best to look seek legal counsel before recording. To simplify the question of legal consent, the best practice is to announce at the start once all have joined in… “This videoconference is being recorded.” That way, everyone is aware and if they remain on the discussion, they are consenting to it.

If you have questions regarding videoconferencing consent or general criminal legal matters, you should seek experienced legal counsel. To schedule a confidential consultation with the attorneys at Neff & Sedacca, P.C., contact the firm by phone at 215-563-9800 or email [email protected].
(1) Source: https://www.justia.com/50-state-surveys/recording-phone-calls-and-conversations/