There are so many cool things being invented and implemented daily, it’s just too cool. I mean, I can use my phone or Alexa to turn my lights/tv on and off; change the temperature of my house; or yes, even have my smart house device laugh creepily at me.
There may come a time when you want to add a feature to your game or your app which allows for your users to record audio or video. I mean, what would A.R. be without that? Or Shazam? Or prank calling apps?
As usual, with each new advent comes with legal challenges that a smart developer will consider before implementing updates willy-nilly. In this case, I’ll be discussing some issues you should consider before launching a feature allowing for voice recording.
Legality of Allowing Recording
By way of example, let’s say you have a game, and you have some well-developed characters from it. We’ll call them Mira and Nokoko. Their names don’t really matter, but it’s for the sake of fun that we get you in the creative spirit of these imaginary characters you’ve developed in your game and now want to bring to life in an app.
[one_half]
Mira
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[one_half_last]
Nokoko
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Let’s say, then, that you’ve created some short scripts in the voice of your characters, which leave spaces for your “target” person to respond. Kind of like this situation:
Oh, the joys of babysitting.
Okay, so you’ve got your characters, you have your script, and you’re ready to let your users unleash the hilarity that is having your characters call up your users’ friends—OH BUT WAIT!! Your users want to be able to hear the call’s responses, right? Of course they do!
So…What’s the Damage Report?
There are some serious legal issues associated with recording people that includes the wiretap act (state-specific laws requiring varying levels of consent to being recorded) and invasion of privacy (a tort/civil crime).
In particular, depending on the state or country in which your users are located or the person they’re calling is located, your users may run the risk of violating a given country’s or a state’s laws by using your app’s feature to listen in on or record a telephone conversation without informing the other parties that they are doing so.
<Wince>
But it doesn’t stop there.
Even if your user’s state only requires the permission of one party (i.e. one side of the conversation), if the person or business they’re calling are located in states which require the permission of both parties (i.e. California, to name one of the twelve) to record a call, your users could be subject to criminal prosecution in that other state.
Serious stuff. Here’s a guide to which states (at least according to the subject blog) in the U.S. are single consent, and which are dual consent states.
What Constitutes Consent?
It depends. If you’ve ever called customer service for anything, you’ve been informed that the call “may be monitored or recorded for quality assurance purposes.” The fact that you stay on the call implies your consent. However, that wouldn’t likely fly with the situation we’ve been discussing. Here is a really great, albeit substantial, article on the subject.
What are Your Options?
Well, first and foremost, have a lawyer look through your app–and I mean fully look through it. They will want to see any and all disclosures, disclaimers, pop-up menus, and “I consent” click-through menus. They will want to test out every feature to make sure that what you think it does, it actually does, and you’re not suddenly surprised when your users figure out how to not only record their prank calls, but also manage to post them online on a platform you don’t control.
Right after that, you’ll likely have a long discussion about how you need to have more disclosures, disclaimers, pop-up and click-through menus to inform people of what they’re doing, educate them about the risks involved with using the service, inserting that information all over your app, game, and website policies, and more.
Once your app finally looks like this…
…then you’ll go back through it with your lawyer and do some damage control so you don’t scare off all your users before they even get to the fun parts of your app. It’s a give and take we lawyers like to call “risk management.” Well, not all lawyers would call it that, but it’ll work for now. Basically, in a situation like this, with so many different state and country laws at issue, and your users likely to be located all over the world and calling all over the world, there’s never going to be a 100% way to be legally in the clear while providing this kind of a service. So, you have to take a long, hard look at what you want to do, discuss with your lawyer how you can reduce your risks, and see if you’re willing to take that final leap and release the app/service.
Wait, so what if my users actually did post content recorded from my app online without my permission?
Luckily for you, I wrote a post on that! In addition to dealing with the intellectual property aspect, it’s usually a good idea to have the belt-and-suspenders approach to protecting your work by not only protecting the copyright, but also to be able to enforce your rights via contract–a.k.a. online policies. I also wrote a post about that!
Need a lawyer to review your stuff and need them at an affordable price? I also posted about that too!