Mystery Shopping, Recording and the Law

I recently wrote about buying a digital voice recorder. That prompted some readers to ask about the legality of recording mystery shops. This should not be considered legal advice, as I am not a lawyer. However, there are some basics about recording conversations you should know if you are thinking about using a voice recorder on your mystery shops. I will also share resources where you can find out what the laws are in your jurisdiction.

First of all, let’s make it clear that we are talking about recording conversations to which you are a party. That means, for example, your conversation with a salesperson or server. It can also include telephone conversations, such as when the entire shop is conducted over the telephone or when you are required to call the location prior to an in-person shop. The laws may vary for in-person communications and telephone conversations, and for audio and video recording.

Laws in the United States (and many other countries) do not generally allow recording of conversations if you are not a party to the conversation. That means leaving a microphone or recorder behind to capture what people say after you leave, or recording the telephone conversations of others—even if those conversations take place on your phone–is not lawful. If you are not one of the people being recorded, you probably may not legally record the conversation.

When you are a party to the conversation, the laws vary by state (and, in Canada, by province). The simple explanation is that there are one-party consent laws and two-party (actually all-party) consent laws.

In a one-party consent state, at least one party to the conversation must consent to the recording. That means that if you are involved in the conversation, your consent is all that is required. Others do not need to be made aware of or consent to the recording.

In a two-party consent state, all parties to the conversation must be made aware of the recording and give their consent. However, there may be exceptions. For example, in some states consent may not be required if there is no expectation of privacy. For example, a conversation in a public place, such as a restaurant or store.

So what can you do in your state? There are several ways to determine what laws apply. A good place to start is the web site of the Reporters Committee for Freedom of the Press. They have a quick reference guide by state. You might also want to refer to the actual statutes in your state. Most of the state listings at the RCFP site cite the statutes that apply. You can then do an online search for the statute number, such as “Texas Code Crim. Pro. Art. 18.20.”

If the mystery shopping company asks you to record the shop, they may advise you that they have obtained the necessary consent. For example, I recently did some shops where I had to record my conversations with sales consultants, then upload the recordings to the mystery shopping company. Although I live in a one-party consent state, it was reassuring to know that the mystery shopping company and the client had signed consent forms on file from the employees, acknowledging that they are aware they may be recorded during the course of performing their duties.

Because most states and provinces require only one-party consent, there is a good chance that you may legally record your in-person and telephone conversations during mystery shops. But if you live in a two-party consent state, there is no reason to sell your voice recorder on eBay. There are still ways you may legally and ethically use your recorder on shops, and I will cover those in a future post.

Cathy Stucker is the author of The Mystery Shopper’s Manual.