Microsoft’s Patent vs. IL Eavesdropping Statute

The PTO recently granted Microsoft patent 7,231,019. It covers a method and system of identifying callers by (1) capturing the acoustic properties of the caller’s voice, (2) creating an acoustic model of the caller’s voice, and (3) comparing that model to stored models of prior callers. It also compares the caller’s words with language models compiled for previous callers to assist in caller identification.

Illinois has a relatively strict eavesdropping statute. So, I wondered whether a person could violate the eavesdropping statute by using this system.

Microsoft’s system is capable of identifying a caller from a single utterance. The system is able to identify a caller “without alerting the caller to the identification process.” The patent claims the system is useful for, among other things,(1) “easily filter[ing] unwanted calls of telemarketers, for example, from desired calls from known callers,” and (2) efficiently routing calls at a large call center to the correct recipient or information database.

Eavesdrop Statute

The eavesdropping statute states, in part: A person commits eavesdropping when he: (1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . .unless he does so (A) with the consent of all of the parties to such conversation or electronic communication. . .” 720 ILCS 5/14-2 (2007). The statute defines eavesdropping device as “any device capable of being used to hear or record oral conversation. . .” Id. at 14-1. The statute defines “conversation” as “any oral communication . . . ” Id.

The eavesdropping statute covers more than just listening in on other people’s conversations. You can violate the eavesdropping statute if even one person to the conversation agrees to the recording, i.e. if the person participating in the conversation is doing the recording. Basically, you can’t record a phone conversation unless all other people on the line agree. Also a back-and-forth conversation is not necessary, one person speaking is enough under the statute because a conversation means any oral communication.

Microsoft’s System vs. Eavesdrop Statute

So if I’m using Microsoft’s system to filter unwanted calls of telemarketers without alerting the caller will I violate the eaves drop statute? It depends on whether the system is used “for the purpose of . . . recording … [the] conversation.” The system uses a computer to analyze the caller’s voice. In order for a computer to analyze a voice it must record the speakers voice into the temporary memory of the computer. Once in the computer’s temporary memory the system can analyze the caller’s voice, recognizing words and creating a acoustic profile. Therefore, the system makes a recording of the caller’s oral communication.

However, its not enough for the system to record a communication. The person using the system must use the system for the purpose of recording the communication. That’s a harder leap to make. When someone records a conversation, that usually implies the person can later play back the recording for themselves or others. Microsoft’s system does not seem to allow the user to playback the recorded caller’s voice. If the system also allowed the user to play back the caller’s voice then the user might run into problems under the eavesdropping statute.

If recording an unconsenting caller’s voice violates the statute doesn’t the use of an answering machine violate the eavesdropping statute? No, courts recognize callers implied consent to the recording when they leave a voice message. Here, however, Mircosoft’s patent claims to identify callers “without alerting the caller to the identification process.” Its unlikely that a caller can impliedly consent without knowing it.

Victory: Microsoft’s Patent

Absent a voice playback feature, the person using the caller identification system is likely not using the system for the purpose of recording the communication, but rather is using the system to identify the caller. As a result, he or she is likely safe from the reach of the eavesdrop statute.

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