Time Warner Cable: We Can Record You, But You Can't Record Us

from the oh-look-at-that dept

So we just had a post about a spoof on customer service from Time Warner Cable by the gripe site TWCCustomerService.com, and I see that they’ve been busy with their next video as well, in which they call Time Warner Cable’s customer service center and tell the representative who answers that they are going to “record the call for quality assurance.” Hilarity ensues.

Here’s a snippet.

Caller: First off, I just want to let you know that I’m recording the call for quality assurance…

Customer Service Rep: Unfortunately, I’m actually not authorizing you to do so, sir.

Caller: You’re not authorized to do what?

Customer Service Rep: I’m not authorizing the recording, sir.

Caller: Oh, well you guys are recording the phone call on your end. Why can’t I record it on my end?

Customer Service Rep: (long pause) Because it’s the company sir.

Later on, the CSR admits that, yes, TWC is recording the call, and the caller requests the recording (guess how that goes?). The CSR continues to insist he’s uncomfortable being recorded and is not giving any consent, so the caller more or less says the same thing and asks the CSR to turn off the recording on their end. And so it goes.

As a random aside, I’ll just bring up the idiocy of places (including my home state of California) that have two party consent recording laws. If you are a party to the call, you should be able to record it without getting the consent of all participants.

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Companies: time warner cable

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Comments on “Time Warner Cable: We Can Record You, But You Can't Record Us”

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Atkray (profile) says:

Slightly off topic

Several years ago, the company I had my mortgage with decided it would be good customer relations to call me on the 6th if they hadn’t received the payment on the 5th It had until the 15th before it was “late”. After a couple months of this it started to get annoying so I started telling them I was recording them.
They were not at all pleased with this and the typical tier one call center people would just hang up. For a month or two I then got someone who wasn’t reading from a script, and would authorize the recording and then ask their questions.

Can’t say I was surprised with what happened to Countrywide.

Tom (profile) says:

Re: it's more simple than that, no?

What I love is when the line just beeps with no explanation or reason. I remember the first time I encountered that, the beep was very loud and annoying.

I finally asked the rep, “What is that beeping noise?”
She answered, “You are being recorded.”
I replied, “I don’t want you to record me.”
She gave me this spiel about how it’s for my protection, blah blah blah. I finally told her that she could call me back when there’s not a machine beeping in my ear every 30 seconds and hung up.

The funny part is that I didn’t care about being recorded. I just hated that annoying beep. It was distracting and kept throwing off my concentration.

Vidiot (profile) says:

Re: Re: it's more simple than that, no?

Back when the phone network was owned by… well… the phone network, and every attached device was manufactured and connected by them, the only way to get an audio signal for recording or broadcast was to have them install a box (an “RCZ coupler”). The box included a mechanical timer and relays, and switched on a tone generator at intervals specified by federal phone tariffs. Until at least 1970, you NEVER heard a recorded or live-broadcast call without the beeps.

Bergman (profile) says:

Re: it's more simple than that, no?

Actually, no. If the CSR did not hear the message saying that THIS call may be recorded, then the notification requirement may not have been met. If they have been told by a trainer or supervisor that all calls are recorded, that would likely suffice, but you could still have legal troubles if the CSR had forgotten about the universal recording.

A safer thing to do is right after you and the CSR picks up the phone and greets you, acknowledge that you know the phone call may be recorded, and since you live in a two-party consent state and don’t want to CSR to get arrested, you give your permission for the call to be recorded.

In many (but not all) states with two or all party consent, continuing a conversation after being made aware it may be recorded is consent to be recorded. It also establishes a (probably mostly fake) concern for the CSR’s wellbeing, which never hurts the quality of service you receive, without triggering the script and likely hangup you’d get if you flat out stated that you were recording the call.

It meets the legal requirements in Washington, for example.

Anonymous Coward says:

“Time Warner Cable: We Can Record You, But You Can’t Record Us”

IIRC from law class, if they can record you, or state that they are recording you, that gives you implicit permission to record them. At least that’s how courts rule. One party being able to record but the other party not is not going to hold up in court.

Mikael (profile) says:

Re: Re: Re:2 Re:

In Texas only one person has to consent for the call to be recorded. Someone can record your call with them and not actually have to tell you. They know it’s being recorded and that is all that is required. Same goes the other way around. I record all of my calls on my cell phone that are to / from numbers that aren’t in my contact list. I know the calls are being recorded so I don’t have to tell the other person.
Also a 3rd party can record your conversation with someone else so long as at least one of the parties on the call know it’s being recorded and consent to it.

Anonymous Coward says:

Re: Re: Re:5 Re:

it depends, actually. Consult a lawyer, but IIRC, it’s the law of whoever was called. In short, if you are calling them, it could be an issue. If they call you, go ahead. It IS generally true that consent to recording cannot be limited to one party. (aka, if they say the call may be recorded, that counts as permission to record them.)

Mikael (profile) says:

Re: Re: Re:6 Re:

From a reply I made below, “If a caller in a one-party state [me in Texas] records a conversation with someone in a two-party state [someone in California] that caller is subject to the stricter of the laws and must have consent from all callers (Cf. Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95 (2006)”

Now in that case specifically the laws of California over rode the laws of Georgia. The case states that both state laws are taken into account, and the state that would suffer the most harm by their law not being followed is the one that is followed. http://www.mofo.com/pubs/xpqPublicationDetail.aspx?xpST=PubDetail&pub=6457

Federal law states that only one party needs to know the call is being recorded, but according to the information from that case it does not supersede state laws.

So it would be considered wise to announce the call is being recorded when you don’t know where the caller is located just to CYA.

Personally it also comes down to who actually knows I’m recording the call. If I’m recording it for my own benefit then I may not mention it to anyone. If it’s something I plan on using later for one reason or another I will say something at the beginning.

art guerrilla (profile) says:

Re: Re: Re:3 Re:

which brings up a number of points (only a couple of which i saw speculated about below):

1. if you are OUTSIDE texas, are you then bound by whatever state you are in ? ? ?

2. if you are in texas, and call me (in florida, which has a both parties consent law), does YOUR single-party texas law hold, or does my florida law ? ? ?

3. similarly, if i originate the call from florida (a two-party consent state) and call you in texas, which law are we bound by ? ? ?

just curious…

art guerrilla
aka ann archy

Mikael (profile) says:

Re: Re: Re:4 Re:

1)It is my understanding that you would fall under the law of whatever state you are making the call from.

2)”If a caller in a one-party state [me in Texas] records a conversation with someone in a two-party state [you in Florida] that caller is subject to the stricter of the laws and must have consent from all callers (Cf. Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95 (2006)”

3)You would need to get my consent to record anyway since you would be calling from a two-party state. If I wanted to record it (even though you were the one calling me) I would still refer to the answer to #2. If I knew you were calling from Florida I would probably need to announce I was going to record it, but I’m not sure it could be held against me if I recorded it not ever knowing where you were calling from.

I found this on dmlp.org and it pretty much sums it all up. (Digital Media Law Project http://www.dmlp.org/legal-guide/recording-phone-calls-and-conversations):
“Unfortunately, it is not always easy to tell which law applies to a communication, especially a phone call. For example, if you and the person you are recording are in different states, then it is difficult to say in advance whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws will control the situation. Therefore, if you record a phone call with participants in more than one state, it is best to play it safe and get the consent of all parties. However, when you and the person you are recording are both located in the same state, then you can rely with greater certainty on the law of that state. In some states, this will mean that you can record with the consent of one party to the communication. In others, you will still need to get everyone’s consent.”
“Federal law requires that at least one party taking part in the call must be notified of the recording (18 U.S.C. ?2511(2)(d))”

So, as stated it would be considered wise to announce the call is being recorded when you don’t know where the caller is located just to CYA. If I know the other person is calling from a one-party state (especially Texas) I don’t say anything about it.

Tom (profile) says:

Harassement FTW

I was involved in… let’s just call it an uncomfortable situation with someone who had emailed my work and called my boss and made rather threatening comments to me and my employer over the phone.

So I informed the person that I was recording all of that person’s phone calls from now on. I even bought a couple of Radio Shack recording interfaces and plugged them in to my work phone and home phone.

I got one further threatening call (a voice mail, actually, which I recorded and still have)… and surprisingly, the calls stopped after that.

Yes, this was in California, and yes, I don’t agree with the two-party notification. But fortunately, the law does have exemptions for things like harassment and collecting data for criminal prosecution.

What I’m wondering is this: if a company does record their calls “for quality and training purposes”, can they legally deny you the right to record the call? You’ve already been informed that the call is being recorded, so at that point, isn’t it fair game – without any further notification?

Second, if that call is being recorded for training or quality purposes, as stated in the on-hold message, is that recording admissible in court or usable for any other purpose, since they specified that it would only be used for training? (For example, would it be legal to use that recording in a radio or TV ad?)

The implications of recording laws have always interested me, since they sometimes seem a little unclear.

Greg G (profile) says:

Re: Harassement FTW

(For example, would it be legal to use that recording in a radio or TV ad?)

I remember hearing radio ads for On-Star a few years ago that would play parts of real calls.

Did the person that was contacted by On-Star have to give permission to On-Star to use that call in an ad or, because it was only a few seconds of the (presumably) lengthy call, was it fair use?

It’s just smart to get permission from the party being recorded if you want to use the entire recording in an ad.

DannyB (profile) says:

Re: So you're down to giggling at prank calls?

OOTB bloviated:

How do you expect this piece to promote reform?

The first step is to realize that there is a problem.

If you don’t recognize that, then you are in denial. Thus, articles like this help to point out the problem and promote discussion.

The second step is about restoring sanity. You may find that medications can be helpful. Or in this present issue, that reform of the laws can be helpful.

OldMugwump (profile) says:

Re: So you're down to giggling at prank calls?

I find it hard to believe that somebody actually pays you to post this kind of drivel. (If so, that somebody is either incredibly stupid, or you’re incredibly smart. And the latter seems unlikely.)

I suppose the alternative is that you do it for free.

Oh well, you do keep us giving us stuff to chuckle at, so keep up the good, um, work.

Bergman (profile) says:

Re: Re: Re:

You don’t even have to say that you are recording to satisfy Washington state law. You merely need to say that you are aware that the call may be recorded at a time that all parties can hear it and your recorder must capture the statement.

Orally giving your permission for the company to record in your all-party consent state while on the line with a CSR suffices.

Bergman (profile) says:

Re: Interesting

I bet you get hung up on a lot. Most companies tell their CSRs to terminate the call immediately if the customer is recording it.

And if the recording doesn’t start until the CSR picks up the phone, you would be committing a crime if you live in a two-party or all-party consent state, because you failed to notify the CSR of the possibility of recording.

G Thompson (profile) says:

Re: Re: Interesting

As soon as you hear the “this call may be recorded” or similar you have the ability to record the phone conversation as well no matter whether you tell them or not.

This is due to implied consent since they are recording you and therefore you by extension can record them. Unless you remove the implied authority they claim by stating that you do not wish them to record as long as where the recording is being done is a two/all party state.

Though everyone be aware that recording a phone call via external device like a microphone pickup (old suction cup) or via speaker-phone and a separate recorder and recording a phone conversation via a wire-tapping method are totally different to each other legally and some jurisdictions will allow one method (normally recording) under their two/one/all party requirements but not the wire-tapping

Mr. Applegate says:

“As a random aside, I’ll just bring up the idiocy of places (including my home state of California) that have two party consent recording laws. If you are a party to the call, you should be able to record it without getting the consent of all participants.”

Excuse me, but if it weren’t for two party calling laws the like of Janet Napolitano wouldn’t use phones either!

How would the world survive. Fist no one uses email (because there is a record), if it weren’t for “Two Party Consent” no one would use the phone either (they might be recorded and held accountable)!

Anonymous Coward says:

it’s the typical ‘i am going to be in control whether you like it not’ attitude that companies have. the downside of this is that a company can ‘edit’ a recording to suit the circumstances if needs be. if the customer were to do that, there would be a lot of problems but as is usual, companies are expected to behave in an exemplary manner but customers are just arse holes, changing things as they want, even though they dont know how to change things

ChronoFish (profile) says:

Am I the only one who sees the irony here?

From what I am picking up from the TD populous:

1. Company claims they can record but don’t want to be recorded : Company is mean spirited

2. Government records (3rd party recording) : Government is abhorrent

3. Individual forced to reveal they are recording (2 party consent) : Such an awful law.

4. I am recording every phone call, don’t have to get approval or give notification (1 party consent): The stuff dreams are made of.

How is 1 and 4 NOT in conflict? Either you agree that one party notification is good (in which case #1 is mute because the company doesn’t even need to let you know) or you agree that 2 party notification is good (in which case #4 goes away).

Based on the comments here the headline should read:
“We Can Record You Time Warner Cable, But You Can’t Record Us”


Anonymous Anonymous Coward says:

Re: Re: Am I the only one who sees the irony here?

In other words, it’s a nice bluff. They say you can’t, whether it is true is irrelevant if most callers are intimidated sufficiently to not record the call themselves.

The question comes up as to whether you tell them you are recording them, which possibly would result in their hanging up as it appears they did in the video, or not tell them and then start posting the recordings along with complaints to places like Yelp and YouTube. At which point they will identify the customer and possibly not respond to complaints or cancel service or some other retribution.

Unfortunately it seems the pragmatic route is to 1)don’t tell them, but record their notice of recording 2)don’t post it, but if necessary and appropriate use it in court, or maybe as leverage sometime late in a negotiation. Too bad we have to play dirty tricks back at them.

Bergman (profile) says:

Re: Re: Re: Am I the only one who sees the irony here?

I usually say something like “Just to let you know, I live in an all-party consent state for recording phone calls, and I wanted to give my consent that this call may be recorded. I wouldn’t want a CSR to get in trouble for recording this call!”

This does two things. First, it establishes a (probably mostly fake) rapport with the CSR, making it sound like you’re at least initially on their side. Second, it satisfies the notification requirement (at least in Washington state) for all parties to the conversation without explicitly stating that I am recording.

As long as their recording records the notification to me, and my recording records my notification to them, the law is satisfied. It would be rather ironic for them to trip over a Long Arm statute and find their recording illegal while mine is not…

Anonymous Coward says:

Re: Am I the only one who sees the irony here?

Actually the customer service rep is a party. You are a party the pary recording is the company which owns and retains the recording this is a 3rd party. Hence even in 1 party notification states companies still must notify, and if a company operates in more than one state it is a good idea to announce just so your lawsuit will hold up.

N Barry Carter (profile) says:

"... for Quality Assurance Purposes"

My wife has been battling with Bell Canada over a mobile phone “contract” that was all arranged over the phone over a year ago. The calls (we were told) were recorded “for quality assurance purposes”. When the bills started coming in, the charges were far and away from what was agreed to. After a year of “battle”, the federal ombudsman’s office got involved and guess what? The multiple recordings were not available due to some explainable technical problem. Seems fair to me that if there is no record then there is no contract. BTW, we never had a problem for over 30 years with any of our accounts until we “bundled” our services.

Anonymous Coward says:

There is a lot of ignorance and stupidity here concering what is legal.

If you are planning to record phone conversations it is best to find out what ALL the laws are in your location.

“ALL the laws”, in the US in most states, AK and LA being noted exceptions, there are state laws, county laws, and city laws plus of course federal laws.

All this does is make something that is legal in one location illegal in another.

It may be perfect legal for one party to unilateral record a conversation and 20 years in a place the sun don’t shine for the opposing party to do so.

Best advice is if in doubt consult a LOCAL attorney who is acquainted with the laws in YOUR location.

greg says:

Re: the CSR is afraid of your motive behind recording the call.

I work at a call centre (student Canada) its no fun. I know my employer is recording me however I am not worried about my employer taking me to court. when a customer says he is recording the call It damn well does make me uncomfortable because his motive is very likely legal. put it in to perspective though I get calls threatening my family threatening me and a whole slew of vulgarity though I am not at fault; not everyone calling in is a tower of morality so to speak. when a company records a call they are held to certain laws to make sure that the recording is secure, when a customer records a call there isn’t a whole lot stopping them from doing whatever they wanted with it.

Simply put yeah there probably is allot of motive for my employer not to want third party recordings that has nothing to do with protecting me the little guy. however I will take every opportunity to avoid handing out recordings of myself do you blame me?

Soundy (profile) says:

Re: Re: the CSR is afraid of your motive behind recording the call.

Not sure I see the problem here… if a customer is recording your call, and makes threats toward you, that recording does nothing for him; releasing it to the world will only show what a douche he is (depending on how YOU handle it on your end, of course).

As a customer, the reason I record my calls to CSRs – and the reason your company probably doesn’t like it – is to have proof of offers made, arrangements reached, etc.

Say, for example, you convince me that if I sign up for a new more expensive service, I’ll get certain perks… then when my bill comes, I see the higher charge, but not the perks. I could TELL your supervisor that, “Oh, well Greg offered me this and this.”, and you can say “No I didn’t”, and it becomes he-said/he-said, and even the company’s recording of the call could be conveniently “lost” if it suits their needs.

But if I have MY recording, then I have something to back me up… say, if I decide to cancel my service because your company isn’t living up to their end of the deal.

The only reason YOU should be afraid of customers recording their calls is if you’re using underhanded tactics with them.

Wesha (profile) says:

I go about it a bit differently.

You know how they always start with automated message “This call may be monitored or recorded…”?

So I start the conversation with the rep like this:

Me: Oh hi, this call may be monitored or recorded, correct?
Rep: Yes.
Me: Okay.

Consent given: the rep has just said that this call may be recorded [by me]. (Well, he doesn’t think he did, but hey… who cares. I am not supposed to be a psychic, and this exchange is a semantically correct expression of agreement from the English language perspective.)

Anonymous Coward says:

It’s common practice here where I work, and honestly the calls are primarily used for scrutinizing the quality of the agents. Just keep in mind that in exchange for allowing the call to be recorded, the agent can be held accountable for their behaviour.

Whenever a complaint is received against an agent and allegations are serious enough, the call will be pulled and you as a consumer have evidence on your side. Bad agents are routinely fired in this manner. So keep in mind that more often than not, these recordings will work in your favor providing the company has a competent QA dept.

Rarely will a call be pulled for reasons other than complaints or quality control, except in extreme situations ex: bomb threats.

The grand majority of recorded calls don’t get listened to (too much data) and calls are discarded after roughly 2 months.

We are also given the right to hang up the call if we are advised we are being recorded. When a customer attempts to record an agent it’s usually some sort of offensive legal/scare tactic since customers don’t record for the purpose of quality control. It’s a little different.

Privacy concerns aside, I just felt obligated to clarify.

byteboy (profile) says:

Expectation of Privacy

Perhaps I missed it, but what is missing in this discussion thread is the expectation of privacy.

The notification that you are being recorded takes away any expectation of privacy you might have and therefore opens up the conversation to recording.

Every statute I’ve ever seen regarding recording, eavesdropping, wiretapping, etc. indicates that at least one of the participants in the call must have an expectation that the call is private and confidential.

At some time, some where, a clever attorney figured out how to remove one of the elements of the crime of wiretapping, etc.

This appears to be how “notification” morphed into “consent.”

No expectation of privacy – no bar to recording the call.

bry says:

so much ignorance in here

first off to the moron that said if he says over the phone ” I consent to this recording” allows him to record the other person – uh NO?

what the hell are you talkin about kid? I’m not going to get into the specifics of why it IS legal for other reasons, BUT – if you’re in a 2 party state, and only YOU consent to being recorded but the OTHER guy doesn’t then no you CAN’T record.

as far as recording TWC – yes, yes you can, but it falls under federal guidelines and NOT state laws.

it’s such a complicated legal issue b/c across state lines it’s impossible to dictate which wiretapping laws should be in play if you have one state that’s 1 party consent and another that’s 2.

but there’s a federal exception for BUSINESS calls. pretty sure conducting business would fall under those guidelines, which IS 1 party consent.

also – all you simply have to do, if youre not sure, is tell the person you’re recording them. if they consent, you’re all good. if not, I’d stop if I were you.

and no, one party telling you that they’re going to record you does not give you carte blanche to record them as well. that makes no legal sense, although it sure as hell makes common sense and should be allowed.

the guy that said “contact your local attorney” doesn’t know squat. you’d need to talk to the attorney general’s office to get clarification b/c it’s a federal question and not a local state law question. but when in doubt, record what you need to if it’s THAT important; ie: it involved consumer fraud, or any crime for that matter.

I do like however the one guy that said: “this call is being recorded correct?” line. that’s hilarious lol. I’m not sure if that would actually constitute consent if they say yes, but I doubt it wouldn’t.

Maybe you’d have to say something vague like “Apparently this call is being recorded”. And when they respond “yes”, you say “thanks”.

And say it with a quizzical tone. That way no court is going to judge one way or the other b/c there’s no way to decipher your initial intentions.

That’s great I should try that next time. But like I said federal law allows business calls under 1 party consent anyway.

TWC is full of sh*t, just like their service.

nasch (profile) says:

Re: so much ignorance in here

and no, one party telling you that they’re going to record you does not give you carte blanche to record them as well. that makes no legal sense, although it sure as hell makes common sense and should be allowed.

Do you have a reference for that? Both parties are aware that the call is being recorded. Seems like that would satisfy the requirement.

Matt LaVelle says:

1 vs 2 party consent is, in practice, just an admissibility ques

In the civil dispute world, the reality of whether recording a call to or from a one party consent state with a party in a two party state will be decided by a trial judge ruling on the recordings admissibility in any case where one party wants to introduce the recording into evidence. Each State will follow its own laws, and precedent from within the jurisdiction. Thus, where the call originated, although an interesting question, won’t be determinative. The law of the State where the judge is ruling on whether the recording will be admitted as evidence, and heard by the trier of fact, usually determines which laws will be applied.

If you are in Federal District Court based on Federal question jurisdiction, it’s one party. The Frederal one party consent statute will be applied. If you are in Federal District Court on diversity jurisdiction, the Court will apply state laws. Which states laws it will apply will be determined through pre-trial motions. Usually, it will be where the service was provided, or where the end user was when they took posession of the product. If its a contract dispute, most contracts include choice of laws provisions, which are binding if the contract is otherwise valid.

If a recording is illegal, it is inadmissible. If it is legal, it is coming in, unless its probative value is outweighed by its prejudicial effect. (e.g. one party declares his hatred for a certain race in a consumer dispute with a service provider, probable is excluded, or redacted, unless the party’s feeling toward that race can be tied to an element of one of the claims. Unlikely.)

So, the real world answer, in my opinion, can not be determined by anybody but an unknown judge, in a jurisdiction that is unknown at the time of the call.

That said, make the record, cite all the out of jurisdiction cases that help, so you have a record and thus, an issue on appeal the if trial judge rules against you. You never know…you may change the law. I remember when my John Flynn and his associate at the time, Mike Kimerrer, argued Ernesto Miranda’s lack of informed consent as a reason his confession should be thrown out to a state trial judge that was not convinced. That ruling was appealed, and after many years of work by massively talented and unpaid lawyers created precedent that changed the law. The result is commonly referred to recognizing people have "Miranda Rights"

As for us individuals, I always assume everyone is recording every phone call. I don’t ask, as they are allowed to lie and will be presented as an indication I have incriminating information I am about to share, or create the impression with the Trier of Fact (i.e. the jury) I am withholding incriminating information.

These laws are not any prosecutor’s priority. They are about what can be presented as evidence. One caveat would be class action lawsuits where the recording party intentionally and repeatedly violated state laws in which it conducts business. Consumer Fraud statutes have both civil and criminal rights of action. In this situation, the legality of the recording itself is the issue, and not merely an admissibility issue.

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