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Re: GoDaddy.com shuts down entire data center?

  • From: Brett Frankenberger
  • Date: Mon Jan 16 11:42:00 2006

uOn Mon, Jan 16, 2006 at 10:20:23AM -0500, Martin Hannigan wrote:
> 
> As  you dig deeper into his site you find out that he does this 
> often for the recorded calls. He's got quite a few to AT&T and MCI
> stored. There's enough there that GoDaddy ought to inquire as to 
> the legality of him taping their call without consent. I don't 
> think the fact that GoDaddy stated they may record is protection
> for both, but IANAL. 

Federal law prohibits private recording of phone calls in the absence
of consent from at least one party to the call.  Since the caller in
this case presumably consented to the recording he was doing, no
federal law was broken.  Whether or not GoDaddy's "we may record"
statement constitutes consent is irrelevant because their consent is
not required.

Most state laws are similar to the federal law.  Some states, though,
require the consent of all the parties to the call.

It's not clear what law applies on interstate calls between states with
dissimilar laws.  In particular, if the caller is in a one-party state
and GoDaddy is in an all parties state, then he is potentially
violating the law in the all-parties state.  Any attempt to prosecute
such violation would likely be challanged on the grounds that it was an
interstate call so only federal law applies (that is, that the
existance of the federal law automatically preempts state law on any
interstate call), or on the grounds that there isn't sufficient
relationship to GoDaddy's state to allow that state to prosecute the
caller.  (Put another way, the argument would be that State X is not
entitled to regulate what individuals in State Y do with their own
phones in State Y, even when they are calling people in state X.)

And, of course, if an all-party law were held to apply to this case,
then he could argue that he consented and GoDaddy's "we might record
this call" constituted consent for him to record it.

In short, if he and GoDaddy are both in the same state, and it's an
all-parties state, he probably broke the law (unless he successfulyl
argues that GoDaddy effectively consented.)

If he and GoDaddy are both in one-party states, he's fine.

Anything else, and it's unclear.  If his state is one-party, he's
probably safe.  If his state is all-parties, then it's harder to say,
although federal preemption is certainly a reasonable argument to make.

http://www.rcfp.org/taping/ seems to have good information.

     -- Brett




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