Even before Linda Tripp and Monica Lewinsky lunched together, recording telephone conversations got asked about and raised questions. Usually the clients asking were my family law clients. Generally speaking, Indiana law allows for the recording of telephone calls if both parties know about the recording. Then there is the tricky thing of federal law. In my mind, the whole process presents too many twists that might bite back at my clients. My reservations only increase with business clients. Understand that I came to age during Nixon's presidency and we all should know what recording messages did for him.
It seems that Wal-Mart found out the hard way what problems recording telephone calls can cause. That has been in the news since yesterday and today's Washington Post has an article on the affair. Here is the paragraph that really caught my eye:
Federal and Arkansas law allow a telephone call to be recorded if one party consents. Wal-Mart said all its employees consent to a blanket policy that allows electronic communications to be monitored or recorded at any time. But the retailer said it tapes phone calls only in "compelling circumstances," such as suspected criminal fraud or security issues, with written permission from its legal department. Williams said the recordings did not meet that threshold and that the employees speaking with Barbaro did not know they were being taped.As happens too often with newspaper stories, some of the most interesting questions never get asked - or, at least their answers do not get printed. Questions such as what were you people thinking of when you implemented this policy? Yes, it sounds good that it is only limited to fraud or security issues, but that limitation did not work, did it? I suspect that Wal-mart's attorney said that it was all legal and not a thought to anything more. Not a thought to what might happen if the system were abused or if the program became public. I wonder how many Wal-mart employees knew of the "blanket policy". I must say that a blanket policy is a dangerous thing for a business, that it will blow back in the client's face at some time, and even if legal the ramifications beyond the bare legality need consideration when counseling a business client.