Telephone recording laws in the United States are generally divided between one-party and two-party consent statutes. California is a two-party state where both parties need to consent before a telephone conversation may be recorded. In Annette Jonczyk v. First National Capital Corporation et al, a plaintiff brought a class action lawsuit against her husband’s employer for allegedly recording employee telephone conversations.
First National Capitol (“First National”) is a California corporation accused of recording telephone conversations in California. However, the plaintiff is a resident of Missouri, a one-party consent state. Under Missouri law, telephone conversations may be recorded so long as at least one-party to the conversation consents. Here, the telephone calls underlying the plaintiff’s lawsuit took place while she was in Missouri. With the choice-of-law deciding the outcome of the litigation, First National moved to dismiss the plaintiff’s claims on the grounds that because she is a Missouri resident, Missouri law should apply.
U.S. District Court Judge Josephine Staton considered which state had the greater interest in applying their call recording statute. In California, Judge Staton noted that the legislature expressed its intent to “protect the right of privacy of the people of this state.” Here, the plaintiff was not a resident of California therefore applying California law to this case would not further that goal. On the other hand, Missouri specifically limited their privacy protection statute to allow a single party to consent to a recording. As noted in Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012), “[m]aximizing consumer and business welfare, and achieving the correct balance for society, does not inexorably favor greater consumer protection.” While California may have an interest in protecting its citizens, Judge Staton recognized that Missouri also had a vested interest in protecting out-of-state businesses from excessive exposure to liability for actions directed at its residents. These factors weighed in favor of applying Missouri law. As a result, Judge Staton granted First National’s motion to dismiss.
Although Judge Staton’s decision rested on conflict-of-law principles, the reasoning behind her decision has the potential for a much greater impact. California and its two-party-consent brethren are in the minority. The majority of states this country have enacted single-party call recording statutes and every one of them could potentially apply the same logic for favoring their state’s call recording framework. So long as the resident involved in the recording resides in a one-party constant state, there is a potential argument that California’s call recording statute may not apply.