By Daniel Rozansky and Crystal Jonelis

Law360 (April 20, 2020, 5:55 PM EDT )

Daniel Rozansky

Crystal Jonelis

With 95% of the country subject to various stay-at-home orders and countless employees working from home for the foreseeable future, an important issue has arisen that must be considered by those conducting business online: How confidential are the conversations that we have through online videoconferencing platforms such as Zoom, Microsoft Teams and Skype?

While videoconferencing has been available for quite some time, the recent stay-at-home orders issued as a result of the COVID-19 outbreak undoubtedly have increased the popularity of such tools. In fact, within the last month, videoconferencing platforms such as Zoom have become the preferred method of conducting not only business meetings, but also school lessons, therapy sessions, religious services, birthdays and even happy hours.

In light of the perceived novelty of these videoconferencing platforms, as well as the fact that people have been forced to embrace this technology seemingly overnight, there is a concern that users of these platforms may not fully comprehend the legal implications that accompany their use.

In light of the recent spate of news about Zoombombing — whereby strangers pop in on meetings, shout obscenities, and sometimes even record it to post on TikTok and other social media platforms — professionals appear to be gaining some level of awareness that such platforms may not be private after all. In fact, this has led to a number of recently filed lawsuits against Zoom.

These same professionals that rely on online video conferencing platforms like Zoom, Microsoft Teams and Skype may not, however, be aware how their use of this technology can expose them to civil or criminal liability.

One obvious way in which users can unwittingly risk liability is by unlawfully recording videoconference calls. The vast majority of states, including New York and New Jersey, are one-party consent states, which means that it is lawful to record conversations so long as one party to the conversation consents.[1] However, California, like a handful of other states, is a two-party consent state.

Two-party consent states require that all parties to a confidential communication consent to the recording.[2] Courts have applied the term "communication" as used in Section 632 of the California Penal Code broadly to include not only audio recordings of conversations, but also video recordings.[3][4]

A communication is considered "confidential" where a party "has an objectively reasonable expectation that the conversation is not being overheard or recorded."[5] Failure to obtain consent before recording the communication can lead not only to civil liability, but also to criminal penalties such as fines and even jail time.[6]

While many people know that consent should be obtained before recording a confidential phone conversation, such as in the context of a call with a customer care representative or when wanting to record a conversation in a two-party consent state, the applicability of such laws to videoconferencing platforms may not be intuitive to all participants.

Indeed, the ease with which a videoconference can be recorded without the use of third-party applications may lull one into recording the communication without even considering legal ramifications.

For example, a host on Zoom can record the conference with a single click of a button — which merely results in a tiny red circle popping up on the participants' screen with the word "recording" in small font. This warning may be easy to miss and could lead to disputes over whether the participants have the requisite notice that they are being recorded.

On Microsoft Teams, the ability to record a conference is not limited to the host, but instead extends to any individual within the same organization as the host.

When a user records a conversation via Microsoft Teams, a banner appears notifying all participants of the recording via a message that reads: "Recording has started. By joining the meeting, you have given consent for it to be recorded." Similarly, a recording on Skype is documented by a banner notifying the users that the call is being recorded.

There also may be confusion regarding whether a participant in a videoconference has a "reasonable expectation" of privacy.

For example, whereas just a few weeks ago it might have been reasonable to assume that videoconference participants were situated in private offices or conference rooms secluded from third parties, the stay-at-home orders have forced workers to participate in videoconferences from their homes — where the conversations may be readily overheard by roommates, significant others and children.

In such quasi-public circumstances, is it reasonable to assume that the video conference is confidential? Perhaps not.

Nevertheless, regardless of where the participants are located or whether the platform provides an obvious or discrete warning that the videoconference is being recorded, from a best-practices standpoint, the prudent course of action is to treat a videoconference the same way you would treat a conference conducted in person or via telephone.

In other words, before recording a conference with your clients, your co-workers, students, patients or fellow happy hour revelers, make sure to obtain their consent before hitting the record button — especially if one or more of the participants is located in a two-party consent state.

In the context of these recorded conversations, consent can easily be obtained regardless of which videoconference platform is being used by simply announcing at the beginning of the videoconference — once all participants have joined — that you are recording the conversation. By continuing in the recorded conference, the participants are deemed to have consented.

For this very reason, a person recording a videoconference on Skype will see a message at the top of their screen urging them to "[a]void legal snags by telling people they're being recorded," despite the banner disclosing the fact that the call is being recorded.

Alternatively, Zoom has its own consent feature that requires participants to click on a consent button before recording can begin. Though it is not necessary to use this feature to obtain consent, it may nevertheless remove any ambiguity as to whether or not the participants are deemed to have consented.[7]

Attorneys should not only avail themselves of one of these simple means of obtaining consent prior to recording a videoconference, but also should advise their clients to do the same.

Clients preoccupied with responding to and resolving various business emergencies caused by COVID-19 may not have call recording laws at the top of their mind when participating in videoconferences. Accordingly, now more than ever, clients may appreciate prospective advice on ways to avoid civil and criminal liability.

Separately, attorneys should review their written discovery requests to confirm that they are expressly requesting copies of any recorded videoconferences. Because videoconferencing is now a necessary component of how many businesses communicate, and in light of the user-friendly recording options discussed above, obtaining copies of recorded videoconferences may be a useful tool in civil litigation — whether or not the conference was recorded with consent.   

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Daniel A. Rozansky is a partner and Crystal Jonelis is senior counsel at Stubbs Alderton & Markiles LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See, e.g., N.Y. Penal Law §§ 250.00, 250.05; N.J. Stat. §§ 2A:156A-3, 2A:156A-3-4.

[2] Cal. Pen. Code § 632.

[3] See People v. Gibbons , 215 Cal. App. 3d 1204, 1209 (1989) ("we find that 'communication' as used in the privacy act is not limited to conversations or oral communications but rather encompasses any communication, regardless of its form, where any party to the communication desires it to be confined to the parties thereto.").

[4] Whether a video recording is considered as a communication by a particular state is largely irrelevant in the context of the video recorded conference call as there is an aural component in all of the communications.

[5] Flanagan v. Flanagan , 27 Cal. 4th 766, 777 (2002).

[6] Cal. Pen. Code §§ 632(a), 637.2.

[7] Although Zoom's consent feature is not part of the default setting, Consumer Reports recently recommended that Zoom change its default recording setting to require the prior consent of all participants in the conference. See https://www.consumerreports.org/video-conferencing-services/zoom-teleconferencing-privacy-concerns/.

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