The Trucker Newspaper - November 15, 2018

• Expanding Our Reefer Fleet • Work for the shipper
• Priority Loads from Cargill Plants
• 100% Owner-Operator Fleet • Sign-on Bonus
• Settlements Processed Twice Weekly
• Year round Freight available • Fleet Owners Welcome
New Mid-West Regional Opportunities!
• Looking for Owner Operators
with 2 years OTR experience
• We Have Fleet Owners
Looking for Drivers
• Base Plate Program Available
$5,000
Sign On BOnuS
20 • November 15-30, 2018 Perspective THETRUCKER.COM
Recording a conversation means you need to
to get consent as laws vary from state to state
Brad Klepper
exclusive to the trucker
Ask the
Attorney
We have all heard “this call may be recorded
… ” every time you call the cable company or
almost any business that has a call center.
Have you ever wondered why they do that?
The answer is to comply with various federal
and state laws on recording conversations. Federal
and many state laws permit you to record
the conversation if one person consents (that
one person could be you). The other states require
all persons recorded to consent.
Why do they need consent? Well, at its most
basic level, recording calls and conversations
is all about the parties’ expectations of privacy.
People have a right, in certain situations, to believe
that their phone calls or conversations are
private. However, in certain situations this expectation
may not exist.
For example, in the case of New Jersey case
of Hornberger v. ABC Inc., the Court of Appeals
ruled that police officers who were videotaped
while searching a car did not have a claim under
New Jersey’s wiretapping law because the officers
had no reasonable expectation of privacy
in a conversation that occurred in a car on the
shoulder of a busy highway. Also, that police officers
have a diminished expectation of privacy
because they hold a position of trust.
Another example of a lack of expectation of
privacy exists would be a couple arguing loudly
in a restaurant. Nobody can reasonably say they
expect their conversation to be private when using
raised voices in a public setting.
Of course, the above are examples of where
no expectations of privacy exist. However, what
about where people do reasonably expect their
conversations to be private? In these cases, you
will need consent.
Consent can be acquired by written permission
or notice to the people on the conversation
that you are recording the conversation or the
call. This is where the “this call may be recorded
…” comes into play. Consent can also be obtained
by doing something as simple as placing
a recorder on a table and telling the other
party you are recording the conversation. Failure
to object effectively waives any opposition
to the conversation being recorded. Regardless,
it is always better for everyone to affirmatively
agree to the recording.
What about recording or taping a police officer
during a stop or arrest? If you ask an officer
during a stop if you can record him, he may
or may not give you permission. Should he tell
you to stop recording, then by all means stop,
because failure to do so will most likely result
in additional charges added or even your arrest.
So what states require that you get permission
from all parties involved before you can
record a conversation? Currently, 11 states require
both parties to consent before you start
recording a conversation. These are California,
Delaware, Florida, Illinois, Maryland, Massachusetts,
Montana, Nevada, New Hampshire,
Pennsylvania and Washington. Regardless, I
would suggest you check the current status of
consent for recording in the state where you will
make the recording as laws change.
An additional item to consider is how the recording
laws of each state interact in interstate
telephone conversations. For example, your call
from Oklahoma to California would require you
to get everyone’s consent. But your call from
Oklahoma to Texas will allow you to record the
call as long as you are part of the conversation.
So before you record phone conversations you
need to know where the person on the other end
is physically located. Is that person in a singleperson
consent state or a state that requires all
parties to consent? Also, keep in mind that now
that cellphone numbers are portable, you can no
longer rely on an area code to determine a person’s
location.
That 212 area code (New York City) showing
up on your phone may really be coming
from the 310 area code (Los Angeles). If one
party to the call is in a state that requires that all
parties consent, that state’s law will apply.
Another thing to keep in mind is that you
cannot legally record a phone call or private
conversation if you are not involved in the call
or conversation. This is in essence the same as
placing a “bug” or microphone to overhear conversations.
As I mentioned earlier, you may be
able to record a call or conversation you could
naturally overhear (think of the couple arguing
in restaurant). However, what if instead of arguing
they were whispering in each other’s ears. I
think they would then have a reasonable expectation
of privacy.
With the advent of cellphone cameras and
recording applications, making a recording in a
state requiring that all parties consent can lead to
arrests if the police officers believe the recording
is being done in secret. Massachusetts, an
all parties consent state, makes any secretive
recording unlawful.
Think of how many cellphones you see sitting
on a table while people are eating and ask
yourself, “is anyone recording our conversation?”
In Massachusetts you must give consent
to be recorded.
At the end of the day, if you are going to record
a conversation it is probably best to get all
parties’ consent prior to recording. It will make
your life a lot easier. Besides, if they ask why
you want to record the conversation you can always
say it is for “quality control purposes.”
Brad. Klepper is president of Interstate
Trucker Ltd., a law firm dedicated to legal defense
of the nation’s commercial drivers. Interstate
Trucker represents truck drivers throughout
the 48 states on both moving and non-moving
violations. He is also President of Drivers
Legal Plan, which allows member drivers access
to his firm’s services at discounted rates.
He is a lawyer that has focused on transportation
law and the trucking industry in particular.
He works to answer your legal questions about
trucking and life over-the-road.
For more information contact him at (800)
333-DRIVE (3748) or interstatetrucker.com
and driverslegalplan.com. 8