But an accredited technology writer did it anyway and then distributed it.
There are essentially two types of consent laws when it comes to recording a conversation between two individuals: one-party consent and two-party consent.
The definition of one-party consent is actually kind of adorable: you can record a conversation between you and an individual if just /one/ party consents to the action of recording. Also, that party can totally be you. It may be somewhat flawed; however, in terms of a hilariously self-enforcing stipulation it wins hands-down. The second, adopted in a handful of states, is known as a two-party consent. This form is, like it sounds, permission being necessitated from both parties before recording can take place.
Block, who was placing the call from California, was in violation of Cal. Penal Code § 632. Let’s take a look into the fascinating and mystical world of law definitions. I’m going to format this in a way that gets the point across; however, feel free to read it in its entirety. Let’s deconstruct this:
632. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
Actually, wait. There really is no deconstruction to this. If this call was recorded in California, Ryan Block broke the law. Let’s pop over to the SoundCloud with his official description:
So! Last week my wife called to disconnect our service with Comcast after we switched to another provider (Astound). We were transferred to cancellations (aka “customer retention”).
The representative (name redacted) continued aggressively repeating his questions, despite the answers given, to the point where my wife became so visibly upset she handed me the phone. Overhearing the conversation, I knew this would not be very fun.
What I did not know is how oppressive this conversation would be. Within just a few minutes the representative had gotten so condescending and unhelpful I felt compelled to record the speakerphone conversation on my other phone.
This would be the point where an individual generally regarded as a leading technical journalist apparently has zero concept of the communication laws that govern the state he presently inhabits.
Am I stomping around demanding justice? Not specifically — I really just want to point out a few things. Do you remember that really good laugh we had at the definition of one-party consent? That’s a reality in the vast majority of the United States. For someone to record your interaction with the singular requirement being that at least one person know — with the addendum that the person recording can be the one person that knows? That’s insane.
But I feel a twinge of protest. Let’s work on massaging that knot out.
Do you fancy yourself an individual who considers Privacy with the importance of making it a proper noun? Are you generally concerned about your privacy? The law that you read above was part of the California Invasion of Privacy Act (CIPA) (Cal. Penal Code §§ 630-637.5) that sets up the laws governing when another person can listen to/record/use/extort/kidnap/be-crimey regarding the information that you, the little information emitting machine you are, emit to specific parties under specific circumstances.
The argument then is that this is somehow unfair with regard to the consumer; however, should the individual you are speaking to — while they are at their place of employment — not be given the right to decline that their interaction be recorded?
Is their privacy less important than the privacy of Ryan Block?
“Doesn’t matter. Their center is located in a one-party consent state. Ha.”
Says the individual. Calling from a two-party state. Using a recording device. On an outbound call. In a state where, to record, both parties must consent.
“OH YOU DONE MESSED UP! They tell you you’re being recorded so I can record too!”
Well, let me clarify that a little bit.
When the automated system informs you that your call will be answered based on if the people in front of you are having good days or bad days /and/ that your call may be recorded for quality reasons — you actually enter into an agreement where you are given acknowledgement that you are going to be recorded and, through the fact that you didn’t scream that the Reptilians were listening, agree to be recorded. The individual who is answering your call agreed to be recorded upon signing into their job. The center recording the call is completely covered on all legal grounds to record the call.
That being said, Ryan Block is not covered by these precedents. If you really want to press the issue of you staying on the line is not implying that you consent, I’d like to introduce you to Shin v. Digi-Key Corp.
“OK, so I passively agreed to being recorded by staying on the line after being informed that the call may be recorded. The representative agrees to be recorded as per their job with the call center they work with. Then what is the problem? They’re recording so I can record.”
You’re going to hate me on this but no, you can not. These are two separate instances of the same thing.
- Thing 1 (T1): The location you are calling has consent from you and the person you are talking with to record the call.
- Thing 2 (T2): Recording a call between you and an entity that you agreed to record your call — but did not agree to you recording them.
These are two different things. The center had consent to record from both parties. Ryan did not have that consent nor, in the recordings placed online, did he specifically ask or tell the representative he was recording.
Ryan did not feel that the privacy of the representative awarded any concern. They’re just voices on the phone — they’re not real people, anyway. A call that /should/ have gone to the department that deals with moving (even if you’re cancelling your service) went to retention — a specific department that is, by nature, driven by numbers. That thought, sadly, was bereft when the necessity was felt to both illegally record and then broadcast the contents of a recording to take a quick shot at the inbound customer service industry: a service hated only slightly more by the people providing it than the people using it. Better yet, it was a good shot at Comcast — a company with a less-than-stellar history of customer sentiment.
Again, I’m not saying that the Recording Stuff Police should break down the door to Ryan’s new home and bring him into the station for booking on this horrid offense to his fellow man. That being said, CIPA is really not a bad act: don’t record people without both parties knowing they are being recorded, don’t use the recordings to be a jerk, don’t intercept data that isn’t yours, if the situation is domestic violence recording is permitted (633.6), don’t be weird and open your ex’s email even though you know their password, if you have access to customer information in large numbers please don’t be a jerk and use it for private sales, if you have access to customer information in large numbers please don’t be a jerk and sell it, if you buy customer information that representatives have access to in large numbers you’re kind of a jerk.
I’m obviously paraphrasing here but the point comes down to the fact that, as much as Block’s Klout score has been boosted in the past 72 hours, he willingly (and likely unknowingly) violated 632, broadcast the illegally recorded communication, and admitted to the action in the description of the illegally recorded material. If anything, one would expect a technically-minded individual to know the specifications of the laws that govern the technology they report on.
Then again, it’s just privacy law.
So Ryan actually did use the defense on Twitter that, since he was in a two-party state calling a one-party state, everything was kosher. I must again reiterate that this is not how the law works. I can’t legally send marijuana from Knoxville to Denver regardless of the contents being legal in the area shipped to. That’s a pretty loose analogy; however, I placed roughly as much effort into it as Ryan placed into his defense.
When contacted specifically in reference to the violation of law, I was informed to reference sections B and E1.
Let’s do that together.
632 (B)(b) The term "person" includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.
I may be off here; however, what I anticipate may have happened is that this portion was read and interpreted under the T1/T2 error. This would be a case for exclusion; however, the only recording that was “known by all parties to [be a] recording of the communication” was the recording made by the center. Ryan’s recording, an instance of recording totally separate from the internal recording, was not known to all parties. Now let’s hop over to E1.
(e) This section does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility
Again, I may be off but I believe I see where the confusion is here. If you’ll note, I only placed part of that definition in bold as I believe it’s where the reading stopped. This section is not stating “the rules above do not apply if you are recording a conversation with a company providing communication services”. It states, “If you are a business that provides communications services and facilities (see: call centers), you are excluded from the entirety of this section if those calls are specifically used for internal use and review”.
I want to reiterate again:
The point of this entire post is not to point out how Ryan Block should be prosecuted for his gross crimes against nature. It’s that an individual who is recognized as a solid writer by a large aggregate of the population (myself included) intentionally violated the privacy of an individual as per the communication laws of the state that they live in. After doing that, a transmission that was obtained illegally was then placed on the Internet. Considering the procurement method was not lawful in the first place, how much closer does that place the distribution and broadcast of an illegally obtained communication to malice? This isn’t Bartnicki v. Vopper — Ryan broke the law himself and then distributed it and, let’s be honest, posting it to SoundCloud isn’t what I’d consider a news format where that case would apply.
I can not begin to describe to you how unpopular of an idea it is to suggest that not only was a law broken for the sake of being Mayven Patient-0 in a viral post — but that the assumed antagonist of was actually the victim of a privacy rights violation. And that the antagonist represents Comcast. I would really have a lot more luck arguing for the release of a serial killer based on the creative merit of their murders.
The same laws that protect you — protect other people. Sometimes in ways that conflict with your opinion of what should happen. This even protects the lowly call center representative. When talking to a friend about this who vehemently disagreed with the post above, I asked if the rights of an individual wearing a headset and answering calls for Comcast were less than that of the individual calling them. He stated they were. Have we really become short-sighted enough to have a sliding scale for what rights you have to privacy based on the company you answer calls for — or more likely the company that was hired to answer the calls for your company?
Regardless this was not intended as a troll piece, call to action for prosecution, or even an attempt at a smear.
But when I go to Ryan’s Twitter page and see the bolded post asking that the representative not be fired for the illegal recording that Ryan made of a confidential call with the consent of only one party for /Ryan/ to record — the first thought I can come up with is, “That’s mighty big of you, Ryan.”