Technology has made it easier to tackle meeting management. Popular artificial intelligence productivity software like READ AI streamlines video conferencing by recording, transcribing and summarizing the event. Apple recently launched a new feature on the iPhone that will record and store a phone call with just a single tap of the button.
These advancements bring convenience to a fast-paced world. But with convenience, there must be compliance. And regarding wiretapping laws, compliance is consent.
Consent can be the difference between compliance and legal troubles. Indiana is a “one-party consent” state, which means, according to the state’s wiretapping law, conversations, conducted virtually, by phone or in person, can be recorded as long as one party consents to the recording. Additional parties do not need to be informed of or consent to the recording.
According to the law, the unauthorized use of recording communications in Indiana carries with it both civil and criminal penalties, including a felony classification that could lead to prison time and hefty fines.
Covering All Bases
Business professionals who elect to use recording software or devices, for both internal and external communications, must do so cautiously, according to Kallee M. Sears, an attorney with Burke, Costanza & Carberry law firm in northwest Indiana. Sears notes that even if one party consents and is aware he or she is being recorded, it’s important that the consent is documented in the event it is questioned at a later time.
Best practices include asking for consent before the recording starts and then following up with acknowledgment on the recording that consent has been made before continuing the conversation.
Sears also said business professionals must be mindful that wiretapping laws differ from state to state, and those laws must be considered while communicated beyond Indiana’s state lines. For instance, Pennsylvania is a two-party consent state. That means that all parties involved must give consent to be recorded. If the meeting organizer in Indiana begins a video conferencing call and adds READ AI to the call without the consent of the Pennsylvania attendee(s), there could be legal consequences.
“Additionally, if you’re on a call with parties in an all-consent state, it’s important to note that consent can be revoked, and to be prepared if that happens,” said Sears.
As technology continues to advance rapidly, lawmakers in all states are working to adjust wiretapping laws to accommodate arising situations. Sears said it is not entirely clear yet how matters are handled when an issue arises regarding a conversation that is recorded between an Indiana person and someone else who is in an all-party consent state.
“While such a case has not yet been brought in Indiana, courts in other jurisdictions have taken different approaches,” she said.
Sears referenced the legal case of State v. Fowler, 139 P.3d 342 (Wash. 2006), where the Supreme Court of Washington chose to apply the law of the state where the recording took place. However, the California Supreme Court, in Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914 (Cal. 2006), applied a balancing test in which they weighed which party would be more impaired if the opposing state’s law were applied. The court applied the all-party consent standard as opposed to the one-party standard, holding that the one-party consent standard would cause more harm to the party residing in the all-party consent state than vice versa, she noted.
Transparency is the Best Policy
It’s more likely that company officials will turn to meeting management AI tools and recordings for internal purposes. Having a summary or automated follow-up checklist from staff meetings or one-on-one conferences is useful and streamlines operations. However, especially in the era of remote and other flexible working arrangements, communicating between states with differing laws, even with employees, could present challenges, Sears warned.
“Consent of all parties is going to become more crucial as remote work becomes more common. For example, say a business manager who resides in Indiana travels to Washington, an all-party consent state, and conducts a remote meeting with colleagues back in Indiana. Knowing that Indiana law only would require her own consent, she fails to obtain her colleague’s consent to record the meeting. Should an issue regarding this recording ever arise, a court may very well decide to determine the case just as the Supreme Court of Washington did in State v. Fowler: the location of the recording controls,” she said.
Sears said business owners can implement policies in which internal staff meetings will be recorded; however, consent is still required, especially in situations where out-of-state employees are working. She said company officials can still take advantage of advancing recording technology but being as transparent as possible is a smart move.
“Make it explicit in employee handbooks that meetings may be recorded. Remind employees at the start of every meeting that they’re being recorded and educate employees about why the technology is being used. Businesses can use these technologies; however, it’s crucial, in a non-legal sense, that employees understand why this technology is used,” she said. “Just because a business complies with the law in obtaining consent does not mean there will not be non-legal ramifications of using the technology such as employees who are hesitant to participate in meetings or not attend at all. Transparency is key here.”
