Legal Question in Business Law in California

Re: Is this legal ?

Your premise that 'both parties giving their consent' is the rule by which recording becomes permissible is not quite correct. If X and Y are having a phone conversation, and X says "I'm going to record this conversation" and Y says nothing, or says "That's okay with me" then X can record it, but Y cannot.

The rule is set forth in Penal Code section 632, which makes recording a crime punishable by a fine of up to $2,500 or jail time up to one year. The Code says a conversation cannot be recorded if a party to it has a reasonable expectation of privacy. It applies to telephone conversations as well as face-to-face situations. If a party announces an intention to make a recording, or places his tape recorder in plain view and turns it on (without saying a word), the others present have no reasonable expectation of privacy and the code is not violated.

If, on the other hand, you call Bigcorp and they announce that they may record the call for quality-control purposes, you lose your reasonable expectation of privacy, because you're warned, but Bigcorp hasn't lost its expectation because you haven't said boo to them about your plan to make a recording.

Here's an analogy. You're taking boxing lessons. The instructor says "c'mon, hit me as hard as you can!" That gives you permission to slug him with all you've got. However, you haven't given him permission to slug back! It's the same with phone recording.

By the way, giving consent is one way to remove the expectation of privacy, but not the only way; it can also be dome by simply announcing that a recording will be made (as with the frequent "quality control purposes" announcements you hear). However, just because ONE party no longer has a privacy expectation does not mean that the other has relinquished his privacy expectations as well!

So, the bottom line is that what you're proposing to do is probably a misdemeanor. You couldn't use the recording in court, and you could find yourself a criminal defendant.