Wait, are you recording this? Videoconferences in the time of COVID-19 -- a US perspective

With everyone around the world working from home, sheltering in place, and social distancing, videoconferencing is proliferating. Everyone is doing it. Virtual meetings, virtual hang outs, virtual happy hours, virtual coffees. Even our parents in their 80s are videoconferencing every day. This has all been terrific.

Have you ever stopped to wonder if anyone is recording all of this? With more and more people connecting via videoconferencing in their business life, the risk of people secretly recording business conversations is on the rise. Recording a conversation is easy to do on video chats -- some services make it so easy that any Luddite can do it.  

We have written about the risks of video conference here. To boil it down even further: those doing business in the United States need to be mindful of a counterparty's ability to record conversations without consent. Indeed, if you look at the Poor Jennifer video, which shows someone forgetting to turn off their video camera during a conference call to embarrassing results, going viral around the internet, you might ask: how could someone legally post such a video?  

Well, the truth is that posting videos like this might be entirely legal, depending on the US state where that video is recorded. The law varies from state to state, but many US states allow recording of conversations so long as one party consents to the recording. This means, necessarily, that if one party (the recorder) consents, no one else on the call or video need be told. Many find this shocking, but it is true.

Over the last several years, the use of secret recordings has been on the rise in commercial disputes. We have seen this come up time and again when the issue of who said what to whom comes up.  

So, how can you protect yourself:

1. Assume you are always being recorded.
2. Watch what you say on calls and video conferences. It may sound artificial, but make sure that your conversations provide a complete and accurate record of the reasonableness of your actions.
3. When in a negotiation, even a friendly one, be mindful that humor may not translate well, and be particularly wary of jokes that some people might find offensive, even if the person with whom you are speaking would not.  
4. Take good notes. Knowing what was discussed when in a negotiation might be important.
5. Follow up important deal points in writing and make clear that there are no agreements until there is final documentation.