Earlier this year, SkypeCap announced a new product that allows users of Skype Voice over IP (VoIP) to record their Skype conversations. From a legal perspective, this raises an issue as to whether such recordings violate the law if the other person on the call does not know their conversation is being recorded. Federal law, under the Electronic Communications Privacy Act, prohibits the recording of telephone conversations by a third person who is not a party to the conversation. As long as one person who is partaking in the telephone call is aware of and consents to the recording, then the recording is not a violation of federal law. Therefore, if the person who owns the new SkypeCap product is on the call and choses to record the conversation, there is no violation of the federal statute. However, 12 states (including Pennsylvania) have their own version of wiretapping statutes that prohibit recording telephone calls unless all parties to the call are aware of and consent to the recording.
So would the owner of the new SkypeCap recording product have to inform the other person that the conversation is being recorded or risk being in violation of the law of one of those 12 states? The answer to this question largely depends on whether a conversation using Skype VoIP falls within the parameters of the applicable state’s statute. From a purely technical perspective, a conversation over computers is not the same as a conversation using telephones. However, even though these statutes may not have been written with Skype VoIP in mind, from a legal perspective, the law may be broad enough so as to encompass conversations over a computer. In Pennsylvania, for example, the prohibition on recording conversations extends to wire, oral, and electronic communications. In addition to being a third degree felony, Pennsylvania law also allows the party whose conversation was recorded without his consent to bring a civil action against the party who recorded the conversation and collect significant monetary damages.
The bottom line is, while a lawyer may be able to argue why the applicable state wiretapping statute does not apply to Skype VoIP conversations over a computer, to be safe, users of this new recording product would be wise to not take any chances. Whatever device you are using to have a conversation, if you are going to record that conversation, tell the other people who are partaking in the conversation and make sure they are OK with it!
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