Audio Recording in Ohio and Elsewhere  

March 2, 2013



1) In Ohio just one party in the conversation must know about it.  

2) If consent is granted, then all is good.  

3) Reasonable expectation of privacy does not pertain to restaurants, public places or your door step.  

Is that correct?

What if employees of a company signed a consent form?

In Ohio recording voice audible voice conversations is legal as along as one party in the conversation is aware of the recording.  Recording cannot take place if a person has a reasonable expectation of privacy in a conversation, as for example, in their office.  I would guess that the best way to avoid a legal issue is to have employees sign consent documents.  I do not think you have to say it’s by a camera or over the phone?

We always record phone conversations at our office and our monitors are aware of it.   We do not tell the customers that the conversation is recorded, as in Ohio only one party has to know about it.

Most telemarketing software also has “listen-in” ability to check on how sales people talk to customers.  Although we do not need to notify customers of the recording, unless the person is calling from another state that has a both party law.  To be safe we should add the beep and a message? What if a sign was posted?  Of course, I am really referring to a hidden camera with a microphone.

Could we install a hidden cameras and have the customer sign off on some sort of limited liability form that explains to the customer that the recording device must only be used in compliance with the local State law?

Here is Ohio law I found:

"Ohio Wiretapping Law

    Ohio's wiretapping law is a "one-party consent" law. Ohio law makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Ohio Rev. Code § 2933.52. Thus, if you operate in Ohio, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.

    Additionally, consent is not required for oral communications (e.g., in-person conversations) where the speakers do not have a reasonable expectation of privacy in the communication. See Ohio Rev. Code § 2933.51. This means that you are free to record a conversation happening between two people in a public place, such as a street or a restaurant, so long as you are not using sensitive recording equipment to pick up what you otherwise would not hear.

    In addition to subjecting you to criminal prosecution, violating the Ohio Wiretapping Law can expose you to a civil lawsuit for damages by an injured party."





    You should get your employees to consent to listening or recording conversations, on phone or otherwise, in their Employment Contract.  You can then listen in or record telephone conversations with your employees and others in one party consent states.  You shouldn't listen in or record conversations with someone in an all party state without consent of that party.  

    How do you get consent?  Unless the statute specifies that the consent must be in writing, you can obtain consent by explaining that the the call is being listened to or recorded and continued conversation constitutes consent.  This should be explained.  Beeping alone would not convey the same disclosure and not likely to constitute consent just because the person continued to talk through the beeping.  

    I am not sure where the above quoted language about restaurants came from, but I don't agree with it.  Expectation of privacy, it seems to me, is not something that doesn't change depending on the circumstances.  It is true that statutes identify certain areas where there should be on confusion about privacy expectation: bathrooms, bedrooms, dressing rooms.  Other areas, particularly public areas, suggest that privacy is not expected.  But, we are not all in the CIA or other clandestine agencies trained to maintain secrecy and circumvent detection.  Two people in a restaurant having an intimate conversation may very well expect privacy.  Perhaps not, if they are talking loudly or yelling at each other, but what if they are clearly attempting to keep their conversation discrete and private?  Now consider how that "private" conversation becomes public.  Someone is sitting near enough to the table to hear the conversation and later repeats it.  I think this would not violate the audio law.  However, if the interception of the conversation is by a mechanical device, a recorder, I think it would violate the audio law.  And, in my opinion, here is the transgression that I think does make it a violation of the audio statute.  Here is an excerpt from the Ohio Audio Llaw, which you can read at:

 "(4) A person who is not a law enforcement officer and who intercepts a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given the person prior consent to the interception, and if the communication is not intercepted for the purpose of committing a criminal offense or tortious act in violation of the laws or Constitution of the United States or this state or for the purpose of committing any other injurious act;" 

   Why was the interception made and what was done with the over heard or recorded audio?  If the purpose of the interception is criminal or tortious then its wrong.  Keep in mind that violation of civil rights can be both criminal and tortious, giving rise to civil monetary damages.  Thus, I conclude that you can't use the audio for malicious purposes.

It's a good idea to include in your contract description of services that you have advised your subscriber that all audio and video devices should be used in a lawful manner.

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