Yes.
That’s it. That’s the whole article. Thank you for reading and happy recording!
Here’s a gif of Happy Feet to celebrate.
Just kidding.
The answer is that it is indeed legal, but you have to do it properly. Let me explain.
One Party vs All Party
The main thing you have to know about audio recording laws is the difference between “One Party” and “All Party” states.
I know it sounds like the name of a Disney channel boy band but “One Party” is actually just short for “one party consent”.
It means that you need the consent of at least one party to a conversation in order to record it.
In “one party consent” states, if you are part of the conversation, you can record it. If you’re not part of the conversation, you need to get the consent of at least one party to that conversation in order to record it.
That’s it. Simple. Just saved you 3 years of law school.
Most states are one party consent states but because this is America, not all states like to party like the feds do.
For conversations that happen face to face, there are 10 “all party” consent states.
- California
- Florida
- Illinois
- Maryland
- Massachusetts
- Michigan
- Missouri
- Montana
- New Hampshire
- Oregon
- Pennsylvania
In these states, you typically need to get the consent of all parties to a conversation in order to record it. But there’s a very important caveat.
In most of these states, the law only applies to conversations where the parties have a reasonable expectation of privacy.
Reasonable Expectation of Privacy
You know when you call a support line and the little robot on the other line says: “this call’s being recorded for quality purposes”?
Companies say this because conversations over the phone are considered private.
Because companies don’t always know where a caller is calling from (California or New York), their robot’s programmed to say it all the time so they don’t run the risk of recording a private conversation of a person without their consent in a state where it would not be legal to do so.
That would risk lawsuits. And ain’t nobody got time for that.
But if the conversation is in a public or quasi-public space, or in a setting where there’s no reasonable expectation of privacy, you’re allowed to record the conversation even if you don’t have the consent of all parties in it.
Conversations in a public park? No reasonable expectation of privacy.
Conversations in the street with a bunch of strangers passing by? No reasonable expectation of privacy. Conversations between shoppers and store associates in retail store aisles open to the public? No reasonable expectation of privacy.
Basically, for face to face conversations outside of your home and office it’s hard to operate under reasonable expectation of privacy.
Montana and Massachusetts are the only two states that do not have this caveat. So in these two states it doesn’t matter if the conversation is private or not. You need to get the consent of all parties in a conversation before you record it no matter what.
Speech analytics for retail done properly.
If you’re reading this, chances are you’re a retailer. You deeply care about giving your shoppers an amazing experience and you understand that you can’t improve what you can’t measure, so you are looking to invest in speech analytics.
Begs the question: how do you do it properly while staying compliant with all the laws and regulations?
Now that we’ve done our crash course in “The Law” let’s talk about best practices for capturing speech analytics from conversations in your stores.
Three simple things.
- Only capture conversations between your employees and your customers.
Capturing conversations your shoppers have amongst themselves without getting their consent is a big no.
No matter where you are, you always need the consent of at least one party to the conversation to be able to capture it and analyze it. In practice, this means you should only capture conversations between your store associates and your customers, and you get the consent of your store associates to do this.
At Rillavoice, we designed our technology to ensure we only capture conversations between customers and employees. Never conversations between customers amongst themselves. Store associates sign into our app were they click a little checkbox where they consent to their conversations with customers being analyzed for quality purposes. - Private conversations in “all party” states
If your store is in any one of the 10 “all party” consent states, you need to get consent from both customers and employees… only if the conversations are private.
This doesn’t include the overwhelming majority of conversations that happen in the store floor where a store associate helps a customer with their purchase.
These conversations are very clearly not private. Stores are open to the public, there’s many people who could overhear the conversation, and there is no reasonable expectation of privacy.
Now, if you have a situation where shoppers book personal appointments with your employees for say, a styling consultation, and they’re sitting in a room alone in a one on one appointment that they expected to be private, then you should get the consent from the customer to record that interaction.
That’s if you’re in California, or Florida, or any of the all-party consent states. In any of the one party consent states, getting consent from your store associates is sufficient.
You can get consent simply by adding a check box into your online booking system that reads “I understand that my appointment will be recorded for quality purposes”.
If your store is in Massachusetts or Montana, it doesn’t matter if the conversations are private or not, you should get the consent from both customers and store employees.
In practice, this means that you either have your store associates disclose to shoppers that their conversations are being recorded for quality purposes, or get the consent from customers before entering the store by putting a clearly visible sign outside of the store or having a store associate communicate it to them.
Otherwise the kinds of data you can capture with speech analytics are more limited. - Anonymize the data
If you anonymize the data you’re not going to run into trouble in California with CCPA, or any other state that implements similar privacy regulations.
To Summarize
Is recording conversations between shoppers and store associates legal? Yes, but you have to do it properly.
Doing it properly means different things depending on what state your store is in, but there are ways to make it compliant almost anywhere.
You just have to follow your state’s regulation about consent and privacy.
And regardless of the legality, any time you’re capturing data from your customers - whether it’s voice or image or their weird search habits - it’s always best practice to disclose it and to be transparent about it.
It’s what makes business sense.
Consumers, especially in America, are not against businesses collecting data.
They understand businesses need to capture some kind of data in order to improve their services.
What consumers don’t like is when companies capture data surreptitiously, without telling anyone, almost as if they’re trying to hide it.
But if you’re transparent about what data you’re capturing and your shoppers understand how and why you’re using it, you will keep their trust.
Like just try to think of the last time you heard of anyone angrily hanging up the phone and taking to Twitter because the service center told them their call was being recorded for quality and training purposes.
Exactly.
So yes, capture data, but make sure you are transparent about it.
That means putting signs in your stores, and training your store associates on how to explain to customers what kind of data is being captured from their conversations and why.
At Rillavoice, we build speech analytics for face to face conversations in offline commerce and many of our customers are in retail. Store associates clip on a lavalier microphone, they talk with customers like usual, our AI captures anonymized and CCPA compliant analytics like: what shoppers care about and how was their experience.
If you want to learn more about implementing speech analytics in your stores, in a legal, cool, and customer friendly way, check out our website here!
Disclaimer: Everything written here is based on our conversations with council, legal scholars, leaders in consumer privacy regulation, and implementations of our technology with our customers, but it goes without saying you should always consult your attorney to talk about your specific use case for speech analytics.
