Call Recording Apps Raise Legal Questions in Australia

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Call Recording Apps Raise Legal Questions in Australia

September 15, 2016

On a regular basis, we find new uses for our smartphones. Smart devices today can be not only telephones, but altimeters, compasses, blood glucose detectors, flashlights and alarms. It’s not a surprise they’re also becoming call recording devices thanks to a number of easy to use apps. Apps such as TapeACall and Automatic Call Recorder have been downloaded by millions of people worldwide, and they allow users to easily record incoming and outgoing calls on their smartphones. From there, they can share them pretty much anywhere they can place a video: on social media, on YouTube or with their lawyer.

But how legal is it to record phone calls? This question, which is governed by both federal and state laws, is a pretty murky one. In the United States, there is a patchwork of laws regarding call recording, and commercial entities are often the ones who push the legal envelope in search of clarification from state and district courts. In Australia, call recording is governed under the Telecommunications (Interception and Access) Act of 1979, but the answers are anything but cut and dry, according to a recent article by Corrs Chambers Westgarth writing for Lexology.

The Act makes it a crime to “intercept, authorize an interception or enable an interception of a communication passing over a telecommunication system.” A recent case brought to Australian federal court based on the Act requested an interlocutory application by a plaintiff for an injunction for the removal of a clip uploaded to YouTube by defendants. Though the application was not successful – the plaintiff presented no evidence as to how the defendants recorded the telephone call – it’s critical to understand that the means of recording (or “interception”) will be significant in future cases brought forward under the TIA. 

“There are many technical possibilities about how a recording could be made, including holding another recording device up to the phone, plugging in a recording device into the phone, using a recording device built into the phone or using a recording app on the phone,” wrote Westgarth. “A telephone call that is recorded must be ‘in its passage’ over the telecommunications system to fall within the relevant sections of the TIA.”

In the future, expert evidence will likely be required to determine whether recorded calls meet the definitions of “in passage over a communications system.” Forthcoming cases will likely require an investigation into the mechanics of how a particular call recording app works.

In the U.S., there is also confusion about the use of call recording apps. Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. These “one-party” rules also apply in 38 states. Eleven states, however, require the consent of every party to a phone call or conversation in order to make recording a call legal.

With the ease of call recording today thanks to dozens (if not hundreds) of apps, we can expect to see the issue addressed more often in state and federal courts. Murky rules that haven’t kept up with technology, or conflicting higher court decisions (which are common) aren’t helping individuals and companies understand where the boundaries of using call recording apps are located. 

Edited by Alicia Young

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