If someone offers you punch from a punch bowl and warns you, “there might be piss in it” while taking their own glass and drinking some of the punch, they might nevertheless be annoyed if you piss in their cup. Maybe they were only OK with the piss that was already in the punch. Maybe there was never any piss and they were just saying that as a very weird joke. To call it consent to drinking your piss is wrong.
There’s two important parts to this:
Me recording a conversation / drinking my own piss is not the same as you recording the same conversation / causing me to drink your piss.
A comment about possibility doesn’t necessarily imply consent anyway.
I mean, I’m quite open to the possibility that your interpretation is legally valid in the USA, or in some particular jurisdiction - and maybe you or someone else has a reference to back it up! I’m just saying that it seems kind of shaky just on the face of it, and could imagine a situation where a lawyer lawyers out of it.
And FWIW, I understood it to genuinely mean that sometimes the call is not recorded, because recording every single call might be expensive, or perhaps even some staff object to their calls being recorded. But I’m sure at a lot of places they record them all and use the same “maybe” language.
When you refer to “my piss” and “your piss”, you imply a distinction that does not actually exist in law. Under wiretapping laws, there is no distinction between the piss of one participant and the piss of another participant in the conversation. When you consent to drinking piss from the punch bowl, you consent to drinking any participant’s piss, and not just your own.
Your entire argument arises from that non-existent distinction; your entire argument fails without it.
A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, […] shall be punished …"
To me that implies that each person who records the conversation must get the consent of all parties. That’s the plain meaning, and for me it would therefore take a further explicit statement to the effect of, “consent to one party recording shall be taken to be consent to any party recording” which I don’t see there.
I would direct your attention to the definition of “confidential conversation”, at 632(c):
For the purposes of this section, “confidential communication” means 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.
Upon any individual on the call stating “This call may be recorded”, every party present “may reasonably expect that the communication may be overheard or recorded”. When that happens, the call no longer qualifies as a “confidential conversation”. As it is no longer a “confidential conversation”, 632(a) no longer applies. As it is no longer a “confidential conversation”, any party to it may record it.
Seems to me that the conversation remains a confidential one.
I’m going to assume you’re acting in good faith for one more response. I’m going to assume you didn’t actually read 632(c). I’m going to parse out all the language that refers to non-pertinent circumstances. And I’m going to make it big and bold so you understand that it is actually important for you to read this:
For the purposes of this section, “confidential communication” … excludes a communication … in any … circumstance in which the parties to the communication may reasonably expect that the communication may be … recorded.
We have a call where one party has said “This call may be recorded”. A circumstance has arisen in which the parties may reasonably expect this call to be recorded. This call is now specifically excluded from classification as a “confidential communication”.
Seems to me that the conversation remains a confidential one.
I don’t think you’re stupid, and I don’t think you’re acting in bad faith. I assume that you didn’t actually read or comprehend what I previously posted. Moving forward, I will not be making that same assumption again. As soon as the parties are aware that the conversation may be recorded, this particular statute no longer applies.
Why is there any clause about consent, if consent is never needed?
Who said consent is never needed? Certainly not I. Certainly not the law. The idea that “consent is never needed” arose entirely within your own understanding; within your own mind.
This is an eavesdropping statute. This law applies primarily to third parties, not actual parties to the conversation.
Adam and Bob are having a private conversation in Bob’s office, but Mallory has placed a voice recorder under the desk. Mallory is not a party to the conversation. Neither Adam nor Bob have any reason to believe anyone is recording. This is still a confidential conversation, even though it is actually being recorded. Adam and Bob would both have to consent, or Mallory can be charged under this law.
Saying “I assume you were replying in good faith but next time I won’t” while being a patronising twat is not, in fact, replying in good faith. Goodbye forever.
If someone offers you punch from a punch bowl and warns you, “there might be piss in it” while taking their own glass and drinking some of the punch, they might nevertheless be annoyed if you piss in their cup. Maybe they were only OK with the piss that was already in the punch. Maybe there was never any piss and they were just saying that as a very weird joke. To call it consent to drinking your piss is wrong.
There’s two important parts to this:
I mean, I’m quite open to the possibility that your interpretation is legally valid in the USA, or in some particular jurisdiction - and maybe you or someone else has a reference to back it up! I’m just saying that it seems kind of shaky just on the face of it, and could imagine a situation where a lawyer lawyers out of it.
And FWIW, I understood it to genuinely mean that sometimes the call is not recorded, because recording every single call might be expensive, or perhaps even some staff object to their calls being recorded. But I’m sure at a lot of places they record them all and use the same “maybe” language.
When you refer to “my piss” and “your piss”, you imply a distinction that does not actually exist in law. Under wiretapping laws, there is no distinction between the piss of one participant and the piss of another participant in the conversation. When you consent to drinking piss from the punch bowl, you consent to drinking any participant’s piss, and not just your own.
Your entire argument arises from that non-existent distinction; your entire argument fails without it.
From California’s Penal Code:
To me that implies that each person who records the conversation must get the consent of all parties. That’s the plain meaning, and for me it would therefore take a further explicit statement to the effect of, “consent to one party recording shall be taken to be consent to any party recording” which I don’t see there.
Good. We’re moving on to a different argument, and abandoning the “piss” metaphor. Excellent.
You cited this law. Specifically, 632(a).
I would direct your attention to the definition of “confidential conversation”, at 632(c):
Upon any individual on the call stating “This call may be recorded”, every party present “may reasonably expect that the communication may be overheard or recorded”. When that happens, the call no longer qualifies as a “confidential conversation”. As it is no longer a “confidential conversation”, 632(a) no longer applies. As it is no longer a “confidential conversation”, any party to it may record it.
Why is there any clause about consent, if consent is never needed? Seems to me that the conversation remains a confidential one.
If you’re actually a lawyer, you could presumably cite a case where this is so interpreted. If not, it still seems very shaky to rely on this.
I’m going to assume you’re acting in good faith for one more response. I’m going to assume you didn’t actually read 632(c). I’m going to parse out all the language that refers to non-pertinent circumstances. And I’m going to make it big and bold so you understand that it is actually important for you to read this:
For the purposes of this section, “confidential communication” … excludes a communication … in any … circumstance in which the parties to the communication may reasonably expect that the communication may be … recorded.
We have a call where one party has said “This call may be recorded”. A circumstance has arisen in which the parties may reasonably expect this call to be recorded. This call is now specifically excluded from classification as a “confidential communication”.
I don’t think you’re stupid, and I don’t think you’re acting in bad faith. I assume that you didn’t actually read or comprehend what I previously posted. Moving forward, I will not be making that same assumption again. As soon as the parties are aware that the conversation may be recorded, this particular statute no longer applies.
Who said consent is never needed? Certainly not I. Certainly not the law. The idea that “consent is never needed” arose entirely within your own understanding; within your own mind.
This is an eavesdropping statute. This law applies primarily to third parties, not actual parties to the conversation.
Adam and Bob are having a private conversation in Bob’s office, but Mallory has placed a voice recorder under the desk. Mallory is not a party to the conversation. Neither Adam nor Bob have any reason to believe anyone is recording. This is still a confidential conversation, even though it is actually being recorded. Adam and Bob would both have to consent, or Mallory can be charged under this law.
Saying “I assume you were replying in good faith but next time I won’t” while being a patronising twat is not, in fact, replying in good faith. Goodbye forever.
👍
You could just stop defending corps. And quit talking about piss while you’re at it.