No - they can't escape the literal meaning of the words. "May I use your restroom?" "Yes, you may use the restroom." Meaning is clear. "This call may be recorded." I'm sorry, that's consent. If they want to argue that their intent is otherwise once I produce my recording that's up to them, but by the literal meaning of their words in the English language they have definitely granted consent.
And as a side note, all of my recordings include me stating on the call that I am also recording. They don't hear me because it's a machine, but they used a machine to get my consent and assume I gave it because I remain on the line, but they also remain on the line after stating it's being recorded. They really have no leg to stand on if they want to fight me on it.
There's nothing to buy. This is the kind of mental olympics a judge would have to go to to give me jail time over this:
1. Decide that a phone-call with me, who lives in a one-party consent state, must be governed by the laws of the all-party consent state the company, who recorded the call themselves, is based in. I'm aware of no precedent even close to this. But wait! There's more!
2. Decide that a person can consent to keep their own recording, but not consent to others keeping their own recording, all implicitly.
3. Decide that an automated machine is sufficient to get my consent, but not the consent of the owner of the machine that's actually doing what they will claim they're not consenting to.
4. Decide that words that literally grant consent are not consent, or that me holding them to their word is not literally fulfilling the stated purpose of improving their customer service.
5. Deal with the fact that I will gladly be found in contempt of court telling the judge to go fuck his or her respective self trying to get media coverage of this stupid decision.
I would've assumed that the company stating that the conversation would be recorded would already be their implied consent to all parties of the conversation recording it...but assumptions and law don't go well together.
Yes. If they are recording, then they've given their consent to be recorded. There is no "I gave consent to be recorded by me but not by the other party"
