KAIA Attorney , Will Larson ’ s Response
KAIA Attorney , Will Larson ’ s Response
A question agents frequently ask is whether they can record phone calls with customers , underwriters , adjusters , whomever , without having to disclose the call is being recorded . The governing law in Kansas is K . S . A . § 21-6101 ( a )( 1 ): § 21-6101 .
In short , if an agency wants to record phone calls probably the safest thing would be to notify the other party or parties the phone call is being recorded , either by a prerecorded message or by the agency staff . Another solution may be to use a system that gives the agency staff the choice of whether to record a call or not . That would give the staff the option of recording two party calls in Kansas without notifying the other party or notifying the other party or parties if it is an interstate or conference call .
Breach of privacy authority :
( a ) Breach of privacy is knowingly and without lawful
( 1 ) Intercepting , without the consent of the sender or receiver , a message by telephone , telegraph , letter or other means of private communication ;
This particular statutory language has not been construed by any Kansas appellate court , but an earlier statute , with essentially the same language , K . S . A . § 21-4002 ( a )( 1 ) has been construed by the Kansas Supreme Court in the case of State v . Gilliland , 294 Kan . 519 , 265 P . 3d 164 , ( 2012 ), in which the Court stated :
K . S . A . 21-4002 ( a )( 1 ) provides for an exception to the statutory right of privacy if one party to the communication consents .
Thus , it is clear in Kansas it is not illegal to record telephone calls without disclosing that the call is being recorded as long as the agency staff knows calls are being recorded .
The issue is more complicated , however , if the other party is in another state . Some states require both or all parties to the communication consent to recording the call . In those situations , it ’ s often not clear which state ’ s laws apply . This is what ’ s called a conflict of law issue and the answer may well depend on where the case is filed if it ends up in court . It ’ s also not clear how Kansas law would apply to a conference call where there may be a communication between two people , neither of whom would be aware the call is being recorded .
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