REVIEW: Global Effect’s Automatic Call Recorder & the legal implications of call recording

As an attorney, the majority of my practice hinges on the “devil” in the details, i.e., the minutia of a conversation can make all the difference in a deal or transaction, particularly when I’m trying to draft an accurate contract reflecting that deal.  Sometimes, I wish I had the assistance of someone like Lily Tomlin who could help me by “listening in” on the conversation and helping remember those critical details.  Historically, I’ve capture those details by hand by taking notes.  While I still maintain that practice (in Evernote), I found a new application for Android that is a tremendous help in “recalling” those details.  Global Effect’s “Automatic Call Recorder” (hyperlink to Play Store) does just what its name implies:  it automatically records all of your telephone conversations.  Whoa, you might exclaim, doesn’t that invade a person’s privacy?  And you might have a point, so let’s discuss the elephant in the room (no offense to Evernote) before moving on to review the application:  is recording a telephone conversation legal in the State of Tennessee, where I practice, or elsewhere for that matter?

With regard to Tennessee, I have a very confident answer, and that is that this is completely legal.  As circular as it might sound in logic, Tennessee has what is commonly referred to as a “one-party consent” law, meaning that so long as one of the parties to a conversation consents to its being recorded, it is legal, even if the party recording the conversation is the one giving the consent.  So, since I am always one of the parties to all of my conversations (that’s the circular part), it is always legal under Tennessee’s law for me to record my conversations.

Here is a summary of the actual law and its exception:

Tenn. Code Ann. § 39-13-601(a) makes it a criminal offense to intentionally “intercept” and/or record any communications, whether that original communication is oral, by wire or by some other electronic means.  This is a very typical form of what is referred to in case law as a “wire-tapping” statute.  However, there are several exceptions identified to this general prohibition, one of which is found in 39-13-601(b)(4), which states that “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][i]t is lawful under [this statute] for a person acting under the color of law to intercept a wire, oral or electronic communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”  So, if I am one of the party’s to the communication, it is legally for me to record that conversation.  In addition to Tennessee, the “one-party consent” rule is in play in thirty seven other states.

That leaves twelve states where the rule is that ALL PARTIES must consent to the recording of the conversation in order for it to be legal:

• California
• Connecticut
• Florida
• Illinois
• Maryland
• Massachusetts
• Michigan
• Montana
• Nevada
• New Hampshire
• Pennsylvania
• Washington

If you are a resident of one of these twelve states, my advise is to be very careful with this application, as it may be illegal for you to use it in automatic mode.  Check with the specifics of your state’s laws and/or consult with an attorney prior to recording telephone conversations.

Having said that, it is clear that even in Tennessee, my attorney ethical rules are still in play, so I must still maintain the attorney client confidences and secure the private conversations I have with my clients, so the ethical rules must be considered.  To address that, it is necessary for me to advise my clients that the conversation is being recording, either verbally or generally by disclosing that fact in an engagement letter, for example.  In addition, if I’m representing transactional clients in any of the twelve identified states, there is an issue as to which state’s law applies.  It is probably always best to follow the law of the more strict state in cases where you are unsure.   By the way, Federal Law follows the “one party consent” rule as well, so this generally cuts against prosecution of interstate calls since they rise to a Federal level of jurisdiction.

Finally, you should remember that it is always a crime to record conversations of telephone calls to which you are not a party, so take care in using this application if you are merged into a conversation anonymously and it automatically records the conversation.

So, now that we have the legal discussion out of the way, what about this application?  The basic concept is simple, the application records all incoming or outgoing conversations on your cell phone without any intervention from you at all.  No button to push or widget to remember.  From my trial of the app, this functionality has been impeccable.  It has recorded every call since installation.

In the initial set up, you select the type of file you want recorded – I chose mp3 – and the service to which you want the files uploaded.  You can choose between Google Docs, Dropbox or Skydrive in this context.  For this, I would have appreciated the option to use either Evernote or Sugarsync, but Google Docs functions quite well and is a nice interface.  You’ll notice from the screenshot to the right that you can also select the path of the folder to which you want the files to sync on your device.  This useful features allows you to direct the files to an external SD card rather than the emulated cards many of the new devices provide so as to conserve storage space.

Once you set the Automatic Call Recorder up to “automatically” record your conversations, it does that job effectively and seamlessly.  I haven’t noticed any lag time or battery drain as a result of using the recorder, and I’ve already utilized the recordings to make reference to conference call details, phone numbers etc.  Once nice thing about using Google Docs is that the program automatically creates a folder on your cloud drive which contains the recordings.  What this does is allows you to select and manage the recordings from your desktop or tablet and, even listen to the calls with Google’s built in file handler.  Very convenient.  The Automatic Call Recorder establishes a file naming protocol that is very logical and includes the date, a random file number, the phone number and, if you have the phone number in your contact list, the name of the caller.  This convention makes it very easy to locate the call you are wanting to revisit.

Of course, a lot of this functionality is built into the application itself, so that you can perform basic management functions on your phone as well as listen to the recordings.  As you can see from the screenshot on the left, you save calls as “important” and even add memo’s to those conversations you want to document.  Another fun feature is the ability to “share” conversations via email or text, or via bluetooth or even through other popular services like Dropbox and Evernote.

And if you are a pack rat like me, the application provide numerous means of backing up the files and restoring them, even if you switch devices.  Automatic Call Recorder is distributed as “trialware,” meaning that you can use it for two weeks, after which time you must purchase it.

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