Use of Recording Software in Conversations between REBNY Members

Question: I have been working with another REBNY broker member on a real estate transaction. It has come to my attention that the other broker is using an application (“app”) to record our telephone conversations without my consent. Is this permissible?

Answer: Under New York State law, it is legal to record a conversation if at least one participant consents, even without notifying others. As a participant, the other broker can legally record without your knowledge, and such recordings are admissible in New York and federal courts. Recording a conversation you are not part of without one participant's consent constitutes illegal eavesdropping, which is a crime New York State.Many apps used by REBNY members, like Microsoft Teams, Zillow, or StreetEasy, have built-in recording features. These are permissible under New York law if one party consents, which the recorder can provide in a two-person call. Under New York State Law, it is legal to record conversations using this software, as long as one participant consents. In a two-person conversation, the person recording the conversation can give the consent without even letting the other person know.While recording is legally permissible in this scenario, the REBNY Code of Ethics and Professional Practices requires all members to follow the highest moral and ethical standards of courtesy, integrity, proficiency, professionalism, and honesty. Accordingly, in the spirit of collegiality and cooperation, REBNY advises members to inform all participants before recording.

Important Tip: There are some practical steps you can take to protect yourself. Review the recording settings in apps you use with other brokers to understand potential risks. Express disapproval by asking if the conversation is being recorded and stating, "I do not consent to this conversation being recorded," this documents your position and may deter the recording. Still, assume conversations may be recorded and proceed accordingly. For information regarding audio and video recordings at a showing, please click here.