No Way To Run A Newspaper
The LA Times' Subscriber Services breaks California laws on recording people without their consent by calling me -- at my home! -- and announcing that they're recording me.
Amy, operator #Y216, called me, and announced, "We are recording this call for quality purposes..."
No. No, no, no.
It's a two-party consent state. You need to ask for my consent, and I didn't give it, don't give it, and won't give it.
If they taped me anyway, they're liable for fines and penalties:
632. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.(b) The term "person" includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.
(c) The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
Who does business like this? Is everyone they call okay with this? If so, why? Is it more sheeple-like behavior like we're seeing at the airports?
Newspaper people, y'know?
Crid [CridComment at gmail] at March 21, 2012 9:35 AM
If you don't hang up on them they consider it to be consent and they will call you back since you didn't tell them to put you on their do not call list.
nonegiven at March 21, 2012 10:22 AM
Amy Alkon
http://www.advicegoddess.com/archives/2012/03/21/no_way_to_run_a.html#comment-3086932">comment from nonegivenUm, recording me from the word hello does not involve any consent. And thanks, best to not try to instruct me on telemarketing law. I've read every word of the Telephone Consumer Protect Act (I think there were 164 pages) and wrote a whole chapter on telemarketing in I See Rude People. I also researched the various state laws on telemarketing, and successfully sued a telemarketer for breaking them, using a loophole in the California law that I researched to win.
For your information, a company you have a business relationship with may call you (within 18 months of your last exchange/transaction, if memory serves me). That said, if they want to keep me as a subscriber, they'd do well not to piss me the hell off.
Amy Alkon at March 21, 2012 10:43 AM
Amy Alkon
http://www.advicegoddess.com/archives/2012/03/21/no_way_to_run_a.html#comment-3086936">comment from Amy AlkonAlso, I explicitly said they do not have consent to record me, at which time it was on them to turn off the recorder.
Amy Alkon at March 21, 2012 10:45 AM
Well, perhaps you are being overly sensitive. If you don't consent, just tell them so and hang up.
a_random_guy at March 21, 2012 11:27 AM
Or better yet:
You're recording this, right? please put me on your Do Not Call List. Thanks, good by!
I R A Darth Aggie at March 21, 2012 11:30 AM
> Well, perhaps you are being overly sensitive.
> If you don't consent, just tell them so and
> hang up.
I hate, HATE, when people say things like that about a matter like this. It's part of the Mommy-tude that's too often brought to bear on matters of public affairs... Saying "Not OK" or "Inside voice" or "Overly sensitive" is a ludicrous response to an offense like this. It's despicably (and baselessly) condescending, and it clarifies nothing. Mostly, it's about the speakers' isolation from the lives of other adults, which we will often have discerned anyway.
At the height of his acquisitive superpowers, Bill Gates had no fiercer insult than to call someone "random".
Crid [CridComment at gmail] at March 21, 2012 11:43 AM
Hi, Amy! Off-topic, but I don't know that you've seen this.
Apparently hunting humans is now legal in Florida. You can stalk your quarry, corner them and when they scream for help, you can shoot them and claim that you felt you were in danger of death or serious bodily harm and no arrests will be made.
http://usnews.msnbc.msn.com/_news/2012/03/20/10775671-trayvon-martin-case-to-go-to-grand-jury-fla-state-attorney-announces
Well, at least someone got bright and decided there needs to be a grand jury involved. Pity. I don't hunt, but I might take it up if I could go hunt someone named George Zimmerman.
Patrick at March 21, 2012 11:51 AM
You could end up the last owner of the LA Times. But you'd probably end up owing more than the computers and desks are worth.
robinintn at March 21, 2012 2:07 PM
Honestly, Patrick, everyone who isn't trapped in an Ecuadorian coal mine has seen that already. Did Amy give consent for you to spam her site?
Mike G at March 21, 2012 3:41 PM
Why on earth would you still subscribe to the LA Times?
Steve at March 21, 2012 3:44 PM
...in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
Looks like they're covered to me. What expectation of privacy is there for a cold call originated from a call center? Plus they you told they are recording. At that point I'd say both parties may reasonably expect to be recorded.
I don't talk to telemarketers, charities, or pollsters unless they consent to compensate me for my time. Invariably they decline to continue the conversation.
Dan at March 21, 2012 3:46 PM
No. No, no, no Amy you are 100% wrong on your reading of the law. As clearly stated in section C. communications ARE NOT considered confidential if - "the parties to the communication may reasonably expect that the communication may be overheard or recorded."
When someone says they are recording you, guess what - you have a reasonable expectation you are being recorded.
The law is designed to deter and punish those who would invade others' privacy and seems well drafted to do just that. You have all the control in the situation if you didn't want to be recorded - you hang up the phone.
Scott at March 21, 2012 4:50 PM
Dan, the cold call is from One party, the company to another party, you. There is no expectation of PUBLIC involvement there, as if you were having a conversation over scones in the park.
In such way, they are not covered.
SwissArmyD at March 21, 2012 5:37 PM
They're a newspaper! They can do anything they want! The First Amendment says so!
Cousin Dave at March 21, 2012 5:40 PM
> As clearly stated in section C. communications
> ARE NOT considered confidential if - "the
> parties to the communication may reasonably
> expect that the communication may be overheard
> or recorded."
OK, but the LAT is nonetheless a repellant publication.
And, just for the sake of discussion, is there a conversation in 2012 America –or personal encounter of any kind, including hot naked sexual intercourse– which a person ought not "reasonably expect [to] be overheard or recorded"?
Perhaps not. When that flight attendant spazzed out last week, a lot of people were ready to preserve the moment.
The question is not going to go away.
Crid [CridComment at gmail] at March 21, 2012 5:55 PM
It seems to me you should be able to record any conversation you are a party to. That is the law in TN and it makes the most sense. There are a lot of times when people call and threaten you or propose something illegal and you can't be expected to ask them for the right to record what is being said. You shouldn't be forced into a you said/terrorist said situation.
It is hard to see any upside to requiring approval of both parties. Anything you tell someone can be repeated anyway. The only thing the recording adds is proof that you said it so preventing recording only protects your ability to lie with impunity... not your privacy. There is no legitimate governmental interest in preserving the plausibility of our lies... except maybe in New York apparently.
I imagine their telling you the call is being recorded is the same as your answering machine saying "leave a message." If you proceed under those circumstances then you have no basis to complain. Unless there is more legalistic hairsplitting of which I am unaware the LA Times is guilty of exactly the same thing Alkon is when she checks her messages.
Voluble at March 21, 2012 5:58 PM
C'mon, Ms. Alkon, think this out a little bit. The LAT is not recording the call in case you let slip some juicy info about your love life, finances, relationships present or past to organizations the Secretary of State may or may not have designated as "terrorist organizations" so that they can turn the info over to the FBI if they don't like the mauve background on your checks, or if you diss them one time too many on your blog.
The purpose is twofold:
(1) To protect themselves, if you have some conversation with their agent and you later claim to have said X or Y, or the agent said Z or A, and you sue them or demand something on that basis. People do this ALL THE TIME, perhaps because they figure hey, it's just a big soulless corporation with big pockets, it's not like an actual person would get hurt...
(2) To keep their service standards up to snuff. They hire some schmo off the street to work the call center, right? She starts making calls. Suppose she's a jerk, and starts insulting people she calls, like you? You complain, right? Now the company wants to fire the errant employee, but -- aha! -- it's not so easy to fire somebody for cause without any evidence. So Amy Alkon complained? What good's that, says the plaintiff's lawyer in the wrongful termination suit -- we all know she's just an Internet crank. She'd say anything to get somebody in trouble... This way, the company has the recording, and if they want to fire Amy Operator #Y216 on the basis of your complaint that she was rude or insulting, they can just roll tape to find out if the hard evidence is in their pocket, and hand the wench her severance check.
Now consider what happens if you in your righteous wrath get the LAT out of this business. Think out the consequences. Now, they aren't going to have records of conversations their employees have with you. Naturally, they're going to instruct those employees to be much more circumspect and careful what they say or promise. Wnat some problem fixed, on the spot, by talking to a responsible party, instead of writing a letter and having them get back to you two weeks later? Not going to happen -- because they'd be naked later, without a record of the conversation.
And what about their employees? Now they can't monitor performance. You call up and complain, say Amy #666 was rude? Well oh well, ma'am, sorry but we have no way of verifying that and Amy turns out to be black and female, so we're both stuck with her. Presumably the LAT would try to be more careful who they hire, too, which will reduce employment prospects for people without good solid records and references (e.g. young people, folks who have bad pasts and need a second chance, et cetera), and increase their employment costs to boot -- which you'll see reflected in your subscription prices.
Consider the possibility, will you, that big firms are sufficiently deeply concerned with just staying in freaking business these days to be prying pruriently into your private affairs, about which, I imagine, they really couldn't care less.
And let us please hear no talk about "the principle of the thing." With a sound principle and $3 you can get a cup of coffee. What matters in the real world is what works, and keeps the engines of commerce running.
Carl Pham at March 21, 2012 6:05 PM
I didn't know this about our hostess:
Sincere props, Amy... That's very Isikoff of you.Crid [CridComment at gmail] at March 21, 2012 6:13 PM
> The LAT is not recording the call in case you
> let slip some juicy info about your love life,
> finances…
Their intentions are irrelevant. Those recordings will exist, and presumably be subject to subpoena and the usual intrusions, governmental, commercial, and other.
Crid [CridComment at gmail] at March 21, 2012 6:16 PM
A recording can be used for ANY purpose, whether the supposedly intended purpose or note.
You don't get to record my voice without my consent unless I am out in public speaking.
You certainly don't get to invade my home, using a phone line I pay for, and do so.
Also, it seems evident to me that it is against the law. She didn't ask me and start the recording only after getting my consent. She told me that they were recording me.
I know California's recording policies well and even when I am recording a researcher I know, I first ask them if I can record them, and then, after they say okay, I turn on the recorder and ask them again on the recording to have a record of their okay. This is my way of being respectful of people's privacy and their right to not be recorded in a conversation that is not publicly audible.
It is astonishing to me the way some argue against privacy. I know, privacy is supposed to be dead -- I just wrote a chapter that includes a section on this. But, because it is the trend to yank people's privacy away doesn't mean you have the right to do it. Not unless a person has done something wrong that is in some way newsworthy, and/or that somehow serves a public good.
The truth is, if you read the statute the way I did -- and I'm not a lawyer...just somebody with an interest in the law and a law book on The First Amendment written by Eugene Volokh...well, it seems they're liable for criminal prosecution and fines.
Now, I'm concerned about the survival of the newspaper business, so I'm not going to go after them, except in a WTF way on my blog -- in hopes they and others will get the message that this is not acceptable as a way of doing business. But, they are breaking the law, as I read it.
Whether their employees are doing their jobs should not come at the price of invading my privacy. It's rude and upsetting and just a really dumb way of doing business: "Let's see who we can upset and offend into continuing to pay for the LA Times today!"
And yes, absofuckinglutely it is the principle of the thing. Principles are important. Because I have them, I get the occasional letter of demand for $500,000 from a TSA agent's lawyer: http://www.ocregister.com/articles/tsa-335352-agent-rights.html
Luckily, because First Amendment Lawyer Marc Randazza also has principles, he came to my rescue and defended my principled ass pro bono.
And finally, what kind of person argues against privacy in hopes of lowering some corporation's sales costs?
Amy Alkon at March 21, 2012 6:21 PM
Oh, and Cridster, just looked at that Balko tweet you linked to -- awesome.
Amy Alkon at March 21, 2012 6:25 PM
Also, while Carl Phamm may be wrong about this, his name strikes my hillbilly Hoosier ear as being almost musically groovy.
Crid [CridComment at gmail] at March 21, 2012 6:27 PM
Interesting you mention Eugene Volokh, as he just sent a comment to the linked story on Instapundit.
Tim at March 21, 2012 6:31 PM
Amy Alkon
http://www.advicegoddess.com/archives/2012/03/21/no_way_to_run_a.html#comment-3088184">comment from TimEugene and I were just emailing about this.
Amy Alkon at March 21, 2012 6:39 PM
Amy Alkon
http://www.advicegoddess.com/archives/2012/03/21/no_way_to_run_a.html#comment-3088188">comment from Crid [CridComment at gmail]I, too, had some momentary phonetic fun with Phamm.
Amy Alkon at March 21, 2012 6:40 PM
I find it interested that most states are intensely interested in preventing the ordinary person from recording conversations unless all parties agree. They impose large fines and long jail terms. They are not particularly interested in preventing video recordings (without sound), and they aren't deeply interested in other privacy concerns. I will guess why.
Recording the misconduct of government officials is the only effective way of proving that they take bribes and sell their offices. The cited law won't protect you from police investigations where the officer secretly records your conversation. It won't protect you from wire taps gained with a court's consent. It will protect your local cop or alderman from being caught for bribes and coercion.
The law should be changed to allow recordings where at least one person in the conversation has agreed, and all conversations of public officials. People should fear prosecution for graft, coercion, and bribery. Being able to record one's own conversations (both sides) would prevent much illegal conduct, especially by the state.
Andrew_M_Garland at March 21, 2012 9:49 PM
Their intentions are irrelevant.
I said nothing about their intentions. What I discussed was their purposes, understanding of which quite naturally leads to reasonable conclusions about their practices, present and future, and the uses to which the information may be put. In short, something extremely relevant.
Those recordings will exist, and presumably be subject to subpoena...
So what? How many subpoenas have you received in your life so far? How many do you expect to ever receive? Someone's going to subpoena your recorded conversation with an LAT call center worker? Inquiring about whether you want to renew or not? What on Earth for? What could you possibly say in such a conversation that would be worth the eighty-five cents of paralegal wages required to fill in your name, correctly spelled, on a subpoena template and click the print button? Is this really in your list of Top Ten Worries? Then you live an awfully sheltered life.
...and the usual intrusions, governmental, commercial, and other
If you think government's intrusion in your life -- which is enormous, far beyond the wildest fantasies you might imagine the LAT plutocrats can have -- would be decreased in the smallest measureable iota by not having call-center recordings in existence, to be theoretically subpoenad when they theoretically take you to court before hauling you off to the re-education camps -- well, you've been watching way too hours of pop culture lawyer media shows. Government intrusion -- even oppression -- doesn't operate through elaborate Rube Goldberg mechanisms of law and courtroom drama, and you can't defeat it by clever David and Goliath judo throws. Aha! But your Honor, that conversation was not recorded! Hence the state cannot prove my client was a Proscribed Person under the Round Up Bad People Act of 2016, and he must be released and compensated forthwith!
Doesn't work that way. If the government intrudes, it does so by withholding your taxes, making you file returns, having you provide your name and Geburtsnummer to board an airplane or deposit $10,000 in cash in your bank, buy and sell pseudoephedrine, hold insurance (verified by a state commissioner) to drive a car or have all your healthcare needs overseen by a bureaucrat in the interests of "fairness." It doesn't bother with such clumsiness as courtroom drama.
Carl Pham at March 21, 2012 11:07 PM
Amy Alkon
http://www.advicegoddess.com/archives/2012/03/21/no_way_to_run_a.html#comment-3088649">comment from Carl PhamWhat I discussed was their purposes,
Their purposes are irrelevant.
How many subpoenas have you received in your life so far? How many do you expect to ever receive?
I'm a bit of an activist for civil liberties. I seem to have ducked a guy we think was a process server for the TSA agent's attempt to suck $500,000 out of me for my civil disobedience and my later naming her name: http://www.ocregister.com/articles/tsa-335352-agent-rights.html
But, even that is irrelevant. My voice is my own. Nobody has a right to call me and record my telephone without my permission.
Then you live an awfully sheltered life.
Cute. Buy my book: I See Rude People. In it, among other stories of my going after various and sundry ne'er do wells, there's the story of how I tracked my car thief for two and a half months and got my car back myself, no thanks to the LAPD.
How creepy that you argue against privacy.
Also, before you lecture me about government's ills, you might read a word or two around here.
Also, you're not funny.
Amy Alkon at March 22, 2012 12:28 AM
> I said nothing about their intentions. What I
> discussed was their purposes, understanding of
> which quite naturally leads to reasonable
> conclusions
Do women tell you you're good in bed?
> How many subpoenas have you received in your
> life so far?
None… But I'm not a major media outlet, I'm not a data center, and I'm not trying to charm people into buying things via automated sales calls over the telephone.
> government's intrusion in your life -- which
> is enormous, far beyond the wildest fantasies
> you might imagine
I can imagine pretty far. A beloved person in my life sent the book a couple months ago. More to the point, the fact that rhinos might charge me at a gallop doesn't mean I want bedbugs chewing into my backside.
Be more fun, and be more right.
————
Also, Amy, get rid of your landline already. The worst thing about it, after a month, is that I can't call the cell phone to make it ring when I forget where I've left it.
Crid [CridComment at gmail] at March 22, 2012 12:39 AM
Amy Alkon
http://www.advicegoddess.com/archives/2012/03/21/no_way_to_run_a.html#comment-3088735">comment from Crid [CridComment at gmail]Have to have a land line to do radio shows! (Other people's shows, that is -- not mine!)
Amy Alkon at March 22, 2012 12:44 AM
Ah.
Crid [CridComment at gmail] at March 22, 2012 1:07 AM
I treat all telepests with the same degree of contempt. I just terminate the call.
BarSinister at March 22, 2012 7:08 AM
Amy Alkon
http://www.advicegoddess.com/archives/2012/03/21/no_way_to_run_a.html#comment-3089421">comment from BarSinisterI treat all telepests with the same degree of contempt. I just terminate the call.
As I wrote in I See Rude People, that's why they can afford to keep pestering all of us.
I'm not going to to it to the LA Times, but in the past, as I wrote in the book, I've tracked down honchos from these companies that have bothered me by hijacking a phone line I pay for to make their marketing costs cheaper. I call them at home, chew them out for calling me at home, and then invoice them for use of my time and phone line and get them to pay me. Got hundreds of dollars! Read my book! ("The Business of Abuse" chapter).
Amy Alkon at March 22, 2012 8:11 AM
Amy Alkon
http://www.advicegoddess.com/archives/2012/03/21/no_way_to_run_a.html#comment-3089423">comment from Amy AlkonHaving people buy my book helps me, but I'm sure not going to call strangers' home and demand they do it. That would be RUDE!
Amy Alkon at March 22, 2012 8:11 AM
in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
When they say "we are recording this", you "reasonably expect" it to be recorded - it's not a confidential communication and thus isn't covered by that statute.
They're not breaking that law.
They're just being jerks - lambaste them for that all you want, by all means.
Sigivald at March 22, 2012 2:38 PM
If it was a call center, they probably don't record the hello, anyway. It probably starts when the person says they are recording. That would keep them within the law. I'll bet it's an autodialer, it finds an answerer that doesn't seem to be a machine and directs the call to an operator. If they recorded everything, including the hello, they'd have 90% answering machine announcements.
nonegiven at March 22, 2012 3:13 PM
Amy Alkon
http://www.advicegoddess.com/archives/2012/03/21/no_way_to_run_a.html#comment-3090070">comment from nonegivenThe announcement that I was being recorded wasn't the opening of the call, and Amy and I spoke before she made that announcement -- and then I said I didn't consent.
Amy Alkon at March 22, 2012 3:26 PM
The Privacy Rights Clearinghouse has some information that pertains to the legality of recording phone conversations. For the state of California, the PRC mentions regulations that are contained in General Order 107-B from the California Public Utilities Commission (CPUC.) From what one can tell, the PRC fact sheet and the CPUC Order specify that notification of a call being recorded can be done by a "beep tone" and that this is an alternative to obtaining the consent of the parties involved. At the same time, it is not clear as to whether a verbal announcement from an operator can definitively substitute for a "beep tone" in the case of call recording. In the case of a call being monitored (which may be different from a call being recorded), the CPUC Order specifies that either a "beep tone" or a verbal announcement by an operator will suffice as notification to the parties involved. (Another aspect that may not be clear is whether a party to a phone conversation can legally disallow recording by stating that they do not consent after being notified.)
There are a lot of times when people call and threaten you or propose something illegal and you can't be expected to ask them for the right to record what is being said. You shouldn't be forced into a you said/terrorist said situation.
Although California law generally requires either the consent of all parties or suitable notification (see above), the PRC fact sheet specifies that a phone call recipient who receives threats of kidnapping, extortion, bribery or a violent felony is allowed to record without the consent of the other party. The laws of other "two party" states may or may not be similar-not sure.
Richard at March 24, 2012 6:12 AM
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