Since the onset of the pandemic, the workflow structure in the corporate world has drastically shifted. In response to the pandemic (but likely a practice here to stay), video conferencing on platforms such as Zoom has become a flexible way to meet with co-workers virtually despite physical limitations. Zoom has handy features such as the ability to record videoconference calls. However, with that convenience comes the risk of liability.
The Electronic Communications Privacy Act (ECPA) provides guidance on the recording of calls. This includes video conference calls, primarily because ECPA governs the acquisition of aural transfer (any transfer containing the human voice, including from the point of origin to reception) through electronic communications.
Under ECPA, it is illegal to record a call without the consent of at least one party. The consent “need not be explicit, and can be implied consent.” States have codified their own variations of recording laws that are either similar to or more restrictive than ECPA. ECPA does not preempt state statutes. The rules within ECPA serve as the baseline restrictions, with states free to impose harsher ones. North Carolina, for instance, is a one-party consent state. In fact, in North Carolina, a participant can imply consent to a recording if they are notified the call is recorded and “continu[e] with the conversation in the face of that warning.”
Other states such as California and Florida are two-party consent states, meaning both parties must consent to the communication being recorded. In the context of a videoconference call in a two-party state, all participants must consent to the recording. To achieve consent, whether it be explicit or implied, actual notice must be given to the person. Participants who continue with the call after acknowledging notice may be viewed as giving implied consent to the recording. Notice can be given through emails prior to the recording, disclaimers, banners, or through other such means.
Many commonly used platforms have built-in assistance. By way of example, Zoom always notifies participants when a video call is being recorded through a disclaimer feature that cannot be disabled. The recording disclaimer appears when a user joins a meeting that is already being recorded, or when the host starts recording the meeting. Account administrators can also customize the disclaimer.
Meeting organizers should ensure all participants are informed and consent to recording video calls prior to pressing “record,” especially since some users may be calling in from a two-party consent state or another jurisdiction. Failing to acquire consent prior to a video recording could lead to civil damages and, in some two-party consent states, criminal punishments. Even when obtaining consent is as easy as pressing “record” thanks to Zoom’s consent feature, the best practice is to notify members before hitting that red button.