词条 | Telephone call recording laws |
释义 |
Telephone call recording laws are laws that govern the privacy of telephone communications, including the recording of conversations. Recording of private conversations by government or law enforcement (wiretapping) are usually covered by distinct laws. Telephone tapping is strictly regulated in many countries, especially in all developed democracies, to safeguard the privacy of telephone users. Telephone tapping often must be authorized by a court, and is normally only approved when evidence shows it is not possible to detect criminal or subversive activity in less intrusive ways;{{cn|date=April 2014}} often the law and regulations require that the crime investigated must be at least of a certain severity.{{cn|date=April 2014}} In many jurisdictions, however, permission for telephone tapping is easily obtained on a routine basis without further investigation by the court or other entity granting such permission. Illegal or unauthorized telephone tapping is often a criminal offense. However, in certain jurisdictions such as Germany, criminal courts may accept illegally recorded phone calls without the other party's consent as evidence. Australia{{See also|Mass surveillance in Australia|}}The federal Telecommunications (Interception and Access) Act 1979 and State and Territory listening devices laws may both apply to monitoring or recording of telephone conversations.[1] The general rule is that the call may not be recorded. Section 7 of the Telecommunications (Interception and Access) Act 1979 prohibits intercepting a telephone call. "Interception" is defined in section 6, of which one element is that it is made "without the knowledge of the person making the communication". There are exceptions to these rules in very limited circumstances, including where a warrant applies. If a call is to be recorded or monitored, an organization must tell the other party at the beginning of the conversation so that it has the chance either to end the call, or to ask to be transferred to another line where monitoring or recording does not take place.[1] Reasons organizations may monitor or record conversations may include:[1]
In the state of Queensland it is not illegal to record a telephone conversation by a party to the conversation.[2] CanadaOrganizationsIn Canada, organizations subject to the Personal Information Protection and Electronic Documents Act[3] (PIPEDA) must comply with PIPEDA when recording calls.[4] In order to comply with the PIPEDA, organizations should take the following steps when recording conversations:[4]
IndividualsAn individual may record a call as long as he or she is one of the participants of the call.[5] The recording can be used as evidence in a lawsuit.[5] However, it is illegal to record communications that the recording party is not participating in.[5] An illegal recording can lead to a sentence of up to five years in prison. Section 183 (Part VI) of the Criminal Code also outlaws surreptitious recording of communications without consent of one of the intended recipients.[6] DenmarkCalls and conversations may be recorded by any active participant, with no requirement to make other parties aware of the recording. But forwarding or playing calls considered private is illegal.[7] FinlandIn the case of private persons, calls and conversations may be recorded by any active participant. There is no requirement to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws, such as data protection (privacy) legislation, libel laws, laws governing trade and national secrets, and any agreements, such as non-disclosure agreements.[8] Recording of calls by a company or an employer is subject to data protection legislation and, as a general rule, requires informing the participants prior to recording.[8] GermanyGermany is a two-party consent state—telephone recording without the consent of the two or, when applicable, more, parties is a criminal offence according to Sec. 201 of the German Criminal Code[9]—violation of the confidentiality of the spoken word. Telephone tapping by authorities has to be approved by a judge. Telephone recording by a private citizen can be allowed in cases of self-defence, Sec. 32 of the German Criminal Code[10], or Necessity, Sec. 34 of the German Criminal Code[11]. For discussion on lawful interception in Germany please see de:Telekommunikationsüberwachung (German language). IndiaIn India, telephone tapping has to be approved by a designated authority. It is illegal otherwise.[12] The Central Government or State Government is empowered to order interception of messages per 12section 5 of Indian Telegraph Act 1885.[13] Rule 419 and 419A sets out the procedure of interception and monitoring of telephone messages. There is a provision for a review committee to supervise the order of interception. Phone tapping is permitted based on Court order only and such permission is granted only if it is required to prevent a major offence involving national security or to gather intelligence on anti-national/terrorist activities. Though economic offences/tax evasion were initially covered under the reasons for interception of phones, the same was withdrawn in 1999 by the Government based on a Supreme Court order citing protection to privacy of the individual. As per Rule 428 of the India telegraphic rules, no person without the sanction of the telegraph authority, use any telephone or cause or suffer it to be used, purposes other than the establishment of local or trunk calls. The Government of India instructions provide for approved attachments. There is no provision for attachment for recording conversation. ItalyAccording to the Supreme Court of Cassation, recorded conversations are legal and can be used as evidence in court, even if the other party is unaware of being recorded, provided that the recording party takes part of the conversation.[14] IrelandRecording calls is legal and recordings can be used as evidence in court, providing the person recording is a participant to the conversation, or has consent from at least one participant from the conversation. [15] LatviaCalls and conversations by private persons may be recorded by any active participant. There is no requirement in laws to make other parties aware of the recording, but the use of recordings, depending on their content, may be subject to various laws.[16] New ZealandRecording of phone calls by private persons falls under interception-related provisions of the Crimes Act 1961, which has a general prohibition on the use of interception devices. An exception is made for when the person intercepting the call is a party to the conversation. There is no requirement that both parties be aware of the interception.[17] PolandAccording to Polish Penal Code (art. 267) call recording is legal for private person only when recording person is one of the participant.[18] No consent from the other side is needed then. Similar to Latvia the use of recordings, depending on their content, may be subject to various laws. [19] [20] RomaniaIntercepting communications falls under the provisions of the Penal Code and, in the case of electronic communications, under the Telecommunications Act (506/2004). The recording of a conversation by a private member to that conversation is specifically permitted. Nevertheless, while such recordings are legal, making use of them may fall subject to further civil or criminal law. Their admissibility as evidence also depends on the circumstances. TurkeyThere are strict conditions for both the act of surveillance as well as the storage of that data, but as long as it is clear enough of what exactly is being used for as well as implementation procedures were legal by authorities, it is deemed as alright. [21] The subject at hand was suspected for not related criminal investigation therefore the telephone tapping was justified. SwedenAccording to the Swedish Penal Code (Brottsbalken) Chapter 4, 8–9 §§, it is illegal to make unauthorized recordings of telephone conversations.[22] A court can grant permission for law enforcement agencies to tap telephone lines. Also, anyone participating in the telephone call may record the conversation — at least one party in the call must be aware of the recording being made. A recording is always admissible as evidence in a court, even if obtained in illegal matters. United KingdomEngland and WalesThe Regulation of Investigatory Powers Act 2000 in general prohibits interception of communications by a third party, with exceptions related to government agencies. A recording made by one party to a phone call or e-mail without notifying the other is not prohibited provided that the recording is for their own use; recording without notification is prohibited where some of the contents of the communication—a phone conversation or an e-mail—are made available to a third party. Businesses may record with the knowledge of their employees, but without notifying the other party, to
They may monitor without recording phone calls or e-mails that have been received to see whether they are relevant to the business (e.g., to check for business communications addressed to an employee who is away); but such monitoring must be proportional and in accordance with data protection laws and codes of practice. This summary does not necessarily cover all possible cases. The main legislation which must be complied with is:
Under RIPA unlawful recording or monitoring of communications is a tort, allowing civil action in the courts. There is a summary of applicable rules on the Oftel website.[26] Recording is sometimes advised, as in recording business transactions carried out by telephone to provide a record. It is sometimes mandatory; from March 2009 Financial Services Authority rules required firms to record all telephone conversations and electronic communications relating to client orders and the conclusion of transactions in the equity, bond, and derivatives markets.[27] In November 2011 this was extended to cover the recording of mobile phone conversations that related to client orders and transactions by regulated firms. ScotlandThe situation in Scotland is similar to that in England and Wales, cover by the Regulation of Investigatory Powers (Scotland) Act 2000.[28] United StatesIn Rathbun v United States, the U.S. Supreme Court ruled in regard to interstate or foreign communication that "the clear inference is that one entitled to receive the communication may use it for his own benefit or have another use it for him. The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone. It has been conceded by those who believe the conduct here violates Section 605 [of the Federal Communication Act] that either party may record the conversation and publish it." See United States v. Polakoff, 113 F. 2d 888, 889. (Therefore, every communications including interstate phone calls, to and from any States in the USA and every foreign phone call to and from the USA, are under the control and the jurisdiction of the Federal government of the USA pursuant to the Federal communication Act of June 19, 1934, 48 Stat. 1064, 1104, 47 U.S.C. Section 605. That any party to the phone conversation can him/herself record the phone conversation or have another person record the phone conversation for him/her and publish it, including posting it on social media.) Federal law requires that at least one party taking part in the call must be notified of the recording (18 U.S.C. §2511(2)(d)). For example, it would be illegal to record, without notification, the phone calls of people who come into a place of business and ask to use the telephone. Call recording laws in some U.S. states require only one party to be aware of the recording, while other states require both parties to be aware. Several states require that all parties consent when one party wants to record a telephone conversation.[29] Telephone scammers and others intentionally violating the federal Do Not Call list may try to locate in those states, or use their area codes. Many businesses and other organizations record their telephone calls so that they can prove what was said, train their staff, or monitor performance. This activity may not be considered telephone tapping in some, but not all, jurisdictions because it is done with the knowledge of at least one of the parties to the telephone conversation. Telephone recordings are governed by federal law and by mainly two types of state laws: Two-party consent statesStates that require that all parties consent to the recording include:
One-party consent statesOne-party consent states are[29]
Following the Illinois Supreme Court's decision in People v. Clark on March 20, 2014, which struck down Illinois' two-party consent law,[43] Illinois was a one-party consent state. However, the state legislature amended the statute and, as of December 30, 2014, Illinois is once again a two-party consent state,[33] although the revised law establishes a one-party consent rule for private electronic communications.[44] The Michigan Court of Appeals ruled in 1982 that participants in a conversation may record a discussion without getting the permission of other participants.[45] The ruling stated that eavesdropping only applies to: "a third party not otherwise involved in the conversation being eavesdropped on". This is because the law uses the wording, "the private discourse of others", rather than the wording, "the private discourse of others or with others{{-"}}.[46] Michigan law is often misinterpreted as requiring the consent of all parties to a conversation.[47] The California Supreme Court ruled in 2006 that if a caller in a one-party state records a conversation with someone in California, that one-party state caller is subject to the stricter of the laws and must have consent from all callers (cf. Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95[48]). However, non-disclosure recordings by one of the parties can legally be made if the other party is threatening kidnapping, extortion, bribery, human trafficking, or other felony violence. Also included in the exception is misdemeanor obscenity and threats of injury to persons or property via an electronic communication device (usually a telephone) if directed in whole or in part towards a conversation participant or family members.[49] According to the Digital Media Law Project, 'New York is a one-party consent state.'[50][51] Some states distinguish between electronic and in-person communication. For example, Oregon is a one-party consent state for electronic communication, but requires all-party consent for live in-person communication, with a few exceptions.[52] Accepted forms of notification recording by a telephone companyThe Federal Communications Commission defines accepted forms of notification for telephone recording by telephone companies as:[53]
See also
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Wiretapping and the one party consent exception to the rule against interception|date=May 6, 2008|accessdate=September 28, 2017}} 7. ^[https://www.retsinformation.dk/Forms/r0710.aspx?id=181992#Kap27 Straffeloven § 264 d] 8. ^1 {{cite web|url=http://www.tietosuoja.fi/fi/index/ratkaisut/puheluidennauhoittaminen.html|title=Omien keskustelujen ja puheluiden nauhoittaminen työpaikalla (Data Protection Ombudsman)|year=2006|accessdate=28 September 2017}} 9. ^Sec. 201 of the German Criminal Code 10. ^[https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0172 Sec. 32 of the German Criminal Code] 11. ^[https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0177 Sec. 34 of the German Criminal Code] 12. ^{{cite web|title=Phone Nice What 1997 Supreme Court verdict says|url=http://news.rediff.com/report/2010/apr/26/phone-tapping-what-1997-supreme-court-verdict-says.htm|publisher=Rediff|accessdate=25 March 2016}} 13. ^Indian Telegraph Act, 1885 14. ^{{cite web|title=Registrare di nascosto: per la Cassazione è legale|author=Francesco Polimeni|date=5 May 2014|url=http://notizie.tiscali.it/socialnews/articoli/polimeni/13230/registrare-di-nascosto-per-la-cassazione-e-legale/|language=Italian|publisher=Tiscali News|archiveurl=https://web.archive.org/web/20161011100301/http://notizie.tiscali.it/socialnews/articoli/polimeni/13230/registrare-di-nascosto-per-la-cassazione-e-legale/|archivedate=11 October 2016|deadurl=yes|df=}} 15. ^ https://www.irishtimes.com/news/crime-and-law/q-a-what-are-the-legal-implications-1.1740070 16. ^{{cite web|url=https://likumi.lv/doc.php?id=4042|title=Fizisko personu datu aizsardzības likums (Personal Data Protection Law)|year=2010|accessdate=28 September 2017}} 17. ^{{cite web|url=http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329814.html|title=Crimes Act 1961, Section 216B|accessdate=28 September 2017}} 18. ^ https://supertrans2014.files.wordpress.com/2014/06/the-criminal-code.pdf 19. ^ https://www.alfatronik.com.pl/info/nagrywanie-rozmow-legalne/ 20. ^ https://bezprawnik.pl/legalnosc-nagrywania-rozmowy/ 21. ^{{Cite journal|last=|first=|date=2016|title=UNLAWFUL USE OF INFORMATION OBTAINED BY MEANS OF TELEPHONE TAPPING IN DISCIPLINARY PROCEEDINGS AGAINST A PUBLIC PROSECUTOR.|url=https://libproxy.berkeley.edu/login?qurl=http%3a%2f%2fsearch.ebscohost.com%2flogin.aspx%3fdirect%3dtrue%26db%3da9h%26AN%3d116819005%26site%3deds-live|journal=Juridical Current|volume=19|pages=169-171|via=}} 22. ^(SFS1962/700) 23. ^{{cite book|url=http://www.legislation.gov.uk/ukpga/2000/23/contents|title=UK Regulation of Investigatory Powers Act 2000|year=2000|chapter=23}} 24. ^{{cite book|url=http://www.legislation.gov.uk/uksi/2000/2699/contents/made|title=Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000|year=2000|issue=2699}} 25. ^{{cite book|url=http://www.legislation.gov.uk/uksi/1999/2093/contents/made|title=Telecommunications (Data Protection and Privacy) Regulations 1999|year=1999|issue=2093}} 26. ^{{cite web|url=http://www.ofcom.org.uk/static/archive/oftel/consumer/advice/faqs/prvfaq3.htm|archive-url=https://webarchive.nationalarchives.gov.uk/20090209105218/http://www.ofcom.org.uk/static/archive/oftel/consumer/advice/faqs/prvfaq3.htm|archive-date=2009-02-09|title=Oftel (UK) FAQ: Recording and monitoring telephone calls or e-mails|date=June 24, 2010|accessdate=September 28, 2017}} 27. ^{{cite web|url=http://www.fsa.gov.uk/library/communication/pr/2008/017.shtml|title=FSA Web site: FSA publishes new rules on telephone recording|publisher=FSA|date=March 3, 2008|accessdate=September 28, 2017}} 28. ^{{Cite web|url=https://www.legislation.gov.uk/asp/2000/11/contents/data.htm|title=Regulation of Investigatory Powers (Scotland) Act 2000|last=Participation|first=Expert|date=|website=www.legislation.gov.uk|archive-url=|archive-date=|dead-url=|access-date=2019-03-29}} 29. ^1 {{cite web |url=http://www.rcfp.org/reporters-recording-guide/tape-recording-laws-glance |title=Tape-recording laws at a glance |publisher=Reporters Committee |date=August 1, 2012|access-date=September 28, 2017}} 30. ^California Penal Code Section 632(a) Retrieved September 28, 2017. 31. ^1 2 {{cite web|url=http://www.dmlp.org/legal-guide/recording-phone-calls-and-conversations|title=Recording Phone Calls and Conversations |publisher=Digital Media Law Project|date=May 14, 2014|accessdate=September 28, 2017}} 32. ^Florida Statutes s. 934.03 33. ^1 {{Cite news|url=https://www.littler.com/publication-press/publication/illinois-newly-amended-eavesdropping-statute-poses-challenges|title=Illinois' Newly Amended Eavesdropping Statute Poses Challenges for Employers|date=2015-01-27|work=Littler Mendelson P.C.|access-date=2018-06-20|language=en}} 34. ^Maryland Code Section 10-402, Courts and Judicial Proceedings Article 35. ^{{cite web|title=Massachusetts Recording Law|url=http://www.dmlp.org/legal-guide/massachusetts-recording-law|publisher=Digital Media Law Project|date=May 8, 2013|accessdate=September 28, 2017}} 36. ^{{cite web|url=http://leg.mt.gov/bills/mca/45/8/45-8-213.htm|title=45-8-213. Privacy in communications |author=Montana Legislative Services}} 37. ^RSA 570-A:2 - NH General Court {{Webarchive|url=https://web.archive.org/web/20130923163252/http://www.gencourt.state.nh.us/rsa/html/LVIII/570-A/570-A-2.htm |date=September 23, 2013 }} 38. ^"Can we tape?" 39. ^Washington State Legislature 9.73.030 40. ^{{Cite web|url=https://www.leg.state.nv.us/nrs/nrs-200.html#NRS200Sec650|title=NRS: CHAPTER 200 - CRIMES AGAINST THE PERSON|website=www.leg.state.nv.us|access-date=2018-10-26}} 41. ^{{cite web |url=https://www.rcfp.org/reporters-recording-guide/state-state-guide/utah |website=www.rcfp.org |accessdate=6 December 2018 |language=en |date=28 August 2012}} 42. ^{{cite web |url=https://le.utah.gov/xcode/Title77/Chapter23A/77-23a-S4.html |publisher=utah.gov |access-date=6 December 2018}} 43. ^{{Cite news|url=https://law.justia.com/cases/illinois/supreme-court/2014/115776.html|title=People v. Clark|work=Justia Law|access-date=2018-06-20|language=en}} 44. ^{{Cite web|url=http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K14-2|title=Illinois General Assembly - Illinois Compiled Statutes|website=www.ilga.gov|language=en|access-date=2018-06-20}} 45. ^{{cite news|url=http://www.foxnews.com/politics/2015/08/07/michigan-pol-reportedly-tried-to-fake-male-prostitute-scandal-to-hide-affair/?intcmp=hpbt4|title=Michigan pol reportedly tried to fake male prostitute scandal to hide relationship|agency=Fox News|date=August 7, 2015|accessdate=September 28, 2017}} 46. ^{{cite web|date=August 21, 2003|url=http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20030821_C234723_55_161O.234723.OPN.COA.PDF|title=State of Michigan Court of Appeals|publisher=publicdocs.courts.mi.gov:81|accessdate=September 28, 2017}} 47. ^{{cite web|url=http://www.dmlp.org/legal-guide/michigan-recording-law|title=Michigan Recording Law | Digital Media Law Project|publisher=dmlp.org|accessdate=September 28, 2017}} 48. ^California courts document on Kearney v. Salomon Smith Barney, Inc. {{Webarchive|url=https://web.archive.org/web/20060823045528/http://www.courtinfo.ca.gov/opinions/documents/S124739.PDF |date=2006-08-23 }} 49. ^California Penal Code § 633.5 50. ^{{cite web|url=http://www.dmlp.org/legal-guide/new-york-recording-law|work=Digital Media Law Project|title=New York Recording Law|date=April 26, 2016|accessdate=September 28, 2017}} 51. ^N.Y. Penal Law sections 250.00 (1), found at New York Laws. Retrieved April 26, 2016. 52. ^{{cite web|url=https://www.rcfp.org/reporters-recording-guide/state-state-guide/oregon|title=Oregon|date=August 1, 2012|accessdate=September 28, 2017}} 53. ^{{cite web|title=Subpart E--Use of Recording Devices by Telephone Companies|url=https://www.gpo.gov/fdsys/pkg/CFR-2010-title47-vol3/pdf/CFR-2010-title47-vol3-sec64-501.pdf|publisher=United States Government Publishing Office|accessdate=September 28, 2017}} External links
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