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Data protection body: Institutions need to justify recording phone calls

Estonian Data Protection Inspectorate signage.
Estonian Data Protection Inspectorate signage. Source: Siim Lõvi/ERR

Some public sector bodies have not done their due diligence on the recording and retention of calls from members of the public, the Data Protection Inspectorate (AKI) says.

Based on a study the AKI conducted in the spring, the authority notes that use of the phone is often seen as a way of contacting a public body "anonymously," compared with the lengths which would need to be gone to to do so via email, yet the practice of recording calls modifies this perception – while it is relatively difficult to identify someone from their voice alone, it is by no means impossible.

The AKI study refers to state agencies, public sector bodies and local government and its agencies, and not private sector firms.

The AKI finds, on the basis of its investigations, that while the recording of phone calls is based on performing a task assessed as being in the public interest or in the course of the exercise of public authority, specific national norms have not been created on whose bases data could be processed in this way.

Those who responded to the monitoring survey and said that they have been recording calls justified doing so via the rationale of ensuring a better service and of complaints resolution.

Providing better feedback to staff, maintaining details for the record, preserving evidence in case of supervisory proceedings and/or providing proof a call had been made, and its contents, in case of law enforcement agencies requiring this, were the other primary reasons cited.

Retention periods for recordings ran the gamut, from a week to 10 days, to a year or more, the survey found.

The AKI recommends that institutions assess whether and for what purpose the recording of calls is required, adding that this purpose should be clearly and specifically defined.

Additionally, call recording retention periods must be consistent with purpose and need.

Institutions should also assess the extent to which the purpose of recording calls is proportionate to the institution's core activities or administrative activities. This in turn hinges on the legal basis on which calls can be recorded, i.e. if the processing of personal data is related to the performance of public duties, or the exercise of public authority, whose legal basis must be ascertained; however, if there is no legislation providing a basis for recording calls and retaining those recordings, the practice must be abandoned, the AKI says.

An institution must also be able to provide justification that a legal norm also applies when recording calls.

Of the 39 public sector institutions which answered the AKI survey, 21 said they did not record calls, while 18 said they did, based on a variety of legal grounds.

The AKI notes that playing a statement (or reading it out) by way of informing a caller that their call is being recorded but without obtaining verbal assent should not be taken as that assent – in other words the absence of answering in the negative should not be taken as grounds for consent.

Instead, consent should be obtained voluntarily and verbally from the caller before proceeding, including in cases where the recordings are being conducted "in order to provide a better service."

The AKI emphasizes that an individual's voice represents personal data and a means of identifying that person even if they do not provide a name, ID number or any other form of data; as in the case of fingerprints, people can be identified via their voices.

The AKI conducted its study in spring this year, in order to map how government agencies and local governments record phone calls and to ascertain what the issues associated with the processing of personal data might be.


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Editor: Andrew Whyte, Barbara Oja

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