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We are Working in a Virtual, Video-Conferencing World – But What About Wiretapping?

Client Alert

Businesses and other organizations often have a need or desire to record telephone conversations related to their business interests and customer dealings; however, this practice is not always permissible as federal and state laws vary on this issue. Knowing and understanding your jurisdiction’s rules and regulations on this practice is essential to remaining in compliance with the law. 

Under the federal Wiretap Act, phone conversations typically may be recorded as long as one party to the conversation consents. Exceptions to this general rule exist, however, including when the consenting party intends to use the recording for criminal or tortious purposes. 

With that said, a state law that varies with the federal by requiring a more stringent two-party consent standard will supersede federal law. Moreover, state laws which do follow the federal one-party standard, but address and outline allow different or additional exceptions to the standard will rule in that regard as well. 

It should further be noted that these laws extend to virtual meetings as well, including those conducted through video-conferencing technologies such as Zoom, Microsoft Teams, etc. — even if the purpose of the meeting is for educational and/or training programs. As popularity in the use of these platforms is on the rise, businesses should be mindful of the civil and/or criminal liabilities associated with the use of these technologies, particularly when seeking to record sessions.

So, what should you do if you believe that you’ve been recorded? Can you ask if you’re being recorded, and does the person answering have to be honest in their response? Unsurprisingly, the answers to these questions vary by jurisdiction as well depending on how strict of a standard your state follows. A one-party consent state has different and more lenient requirements than a two-party consent state. 

Penalties for failing to follow any of the above-mentioned federal and/or state wiretapping laws are serious, so ensuring notice and consent before recording as required can mean the difference between compliance and potential fines as well as prison time. 

Knowing and understanding the implications and permissibility of recording phone and/or video conferencing conversations is increasingly important in light of ongoing stay-at-home orders leading to the growing use of these technologies. If you have any questions regarding the scope of your specific jurisdiction’s law on these issues, please contact Amanda L. Waesch, Esq. at alwaesch@bmdllc.com.


House Bill 249: Key Updates to Involuntary Hospitalization Law for Mental Health Providers

House Bill 249 (HB 249) proposes changes to Ohio Revised Code (ORC) Sections 5122.01 and 5122.10 to expand the conditions under which a person with a mental illness can be involuntarily hospitalized.

Starting an Advanced Practice Provider Practice

Advanced practice providers (APPs), which includes non-physician providers such as nurse practitioners, physician assistants, and nurse anesthetists, commonly start their own healthcare practices. Practices may provide, for example, service offerings such as primary care, anesthesiology, mental health, and aesthetics (medical spas). However, there are a number of considerations and steps that must be taken for APPs to compliantly function independently.

FTC Increases Targeting of Companies Lacking Cyber Protection

The Federal Trade Commission (FTC) recently released a comprehensive cybersecurity report outlining key findings and recommendations based on emerging threats, trends in data breaches, and strategies for businesses to enhance their cybersecurity posture observed over the last year.

New Federal Medical Conscience Rule and Its Implications

The Department of Health and Human Services Office for Civil Rights issued a Final Rule to clarify protections for healthcare providers who refuse services based on religious or moral beliefs. This includes protection against discrimination for refusing procedures like assisted suicide or abortion. The OCR can receive complaints, conduct investigations, and enforce these protections. Entities are encouraged to update policies accordingly and display a model notice provided by the OCR.

Marijuana Reclassification and APRN/PA Prescribing

Marijuana is expected to be reclassified by the Drug Enforcement Administration (DEA) from a Schedule I controlled substance to a Schedule III controlled substance as a result of efforts by the Biden administration.