AI Notetakers and Recording Consent: The Bot Isn't Consent

On 13 August 2026 a federal judge in San Jose ruled on Otter.ai's motion to dismiss a class action that accuses its meeting notetaker of recording people without their consent. Most of the claims it ruled on survived.

That will be repeated as "a court ruled Otter's notetaker is illegal". It didn't. It ruled that the complaint, taken as true for now, describes claims the law recognises, so the case goes on. Nothing has been proved against anyone.

What the order does show, along with the terms of every notetaker we opened and the statutes themselves, is a practical fact that doesn't depend on how the case ends: when a bot joins your client call, the duty to get consent is yours, and what that duty requires changes at state lines.

This is not legal advice, and we are not lawyers. It describes what the documents say, with the source for each one. Where a state's official site refused to load for us, we say which reproduction we used instead.

What the court actually decided

The case is In re Otter.AI Privacy Litigation, No. 5:25-cv-06911 in the Northern District of California, filed 15 August 2025. We read the order itself, ECF No. 68, all 23 pages, rather than the coverage of it.

It is a ruling on a motion to dismiss. At this stage a court accepts the complaint's allegations as true and asks one question: if they were true, would the law give these plaintiffs a claim? The order's own words: "the Court GRANTS in part and DENIES in part Otter's motion."

What goes forward: the federal Wiretap Act claim, the California Invasion of Privacy Act claim, both Illinois biometric privacy claims, California's Unfair Competition Law, unjust enrichment, and a request for a declaratory judgment. Two privacy claims, intrusion upon seclusion and California's constitutional privacy right, go forward for one plaintiff only.

What was dismissed, with permission to try again: the federal computer-fraud claim, California's computer-access statute, and the Washington Privacy Act claim. The plaintiffs withdrew several others.

The reasoning that matters most is about what the vendor does with the audio. Under California's wiretap statute, the court noted that "software providers acting only as an extension of a user or client are not considered third-party interceptors". Otter could still be one "because Plaintiffs plausibly allege that Otter independently collects, retains, and uses communications for its own commercial purposes". The complaint alleges Otter keeps conversation data to improve its machine-learning models. That allegation, not the recording as such, is what put Otter on the wrong side of the line at this stage.

And a visible bot was not enough to show people knew. The Washington claim was dismissed for a different reason, but on consent the court rejected Otter's argument: "Even if the Otter Notetaker appeared in the meeting as another participant, the Court cannot infer that [the plaintiff] knew his communications were being recorded, transcribed, and retained by Otter."

Where the case is now. The order gave the plaintiffs 14 days to amend and Otter 21 days after that to respond. The docket since then shows the parties negotiating a protective order for material exchanged in discovery, and three filings from 25–26 August that aren't in the free public archive, so we can't confirm whether that schedule still stands. Nobody has been found liable, and no Otter account holder is a defendant.

A second case says "no bot" is no defence

On 30 July 2026 a separate class action was filed in the same court against Granola, a notetaker that doesn't send a bot into the meeting at all: No. 3:26-cv-07926. It pleads the same wiretap theories.

The complaint alleges, at paragraph 42, that "By default, Granola does not disclose to meeting participants that their communications are intercepted, recorded, and used by Granola", and at paragraph 89 that model training "is enabled by default" on Granola's Free and Business plans, quoting Granola's own wording. These are allegations in a complaint filed six weeks ago. Nothing has been decided. But the case is a useful warning against the assumption that a notetaker nobody can see is a safer one. If the tool is invisible, the only notice anyone gets is the one you give.

Every tool we checked puts the consent duty on you

Otter. Its Terms of Service, effective 19 September 2025, section 9.2: "You acknowledge and agree that you are solely responsible for providing any notices to, and obtaining consent from, individuals in connection with any recordings as required under applicable law."

Fathom sends attendees a consent email before a scheduled call. Its help centre is candid about what silence means: "If we don't receive a response to the consent email, Fathom will still join and capture the call as normal." If someone declines, auto-record is switched off for that meeting, but the host can still start recording manually after asking during the call. So a consent email that nobody answered is not consent under any statute below. It's an unanswered email.

Microsoft Teams has a setting that makes participants agree before they're included in a recording or transcript. Microsoft's own documentation, updated May 2026, on the other position: "Off … This setting is the default value. For organizers with this policy, participants aren't asked for consent to be recorded and transcribed." If you run your own Microsoft 365 tenant, you're the admin who can turn it on.

None of this makes the tools bad. It makes them tools. The contract, the default and the law all point at the person who pressed record.

Which states require more than your own consent

Federal law lets a participant record a conversation they're part of with their own consent, unless the recording is for a criminal or tortious purpose, and many states follow the same one-party rule. A group of states goes further. Calling them all "two-party states" gets several of them wrong, because the statutes don't agree on what is protected, or how.

We built this table from the statutes. Official state sites for seven of these states blocked or refused our connection, so for those the source column names the reproduction or the court opinion we read instead.

Four things in that table matter more than the ticks and crosses.

Maryland, Montana and New Hampshire belong on it, for different reasons. Maryland and New Hampshire require everyone's consent, and New Hampshire's is a felony provision. Montana's is narrower than the others: it's about hidden devices and knowledge, not consent.

"Two-party" hides splits. Oregon lets you record your own phone call but not an in-person conversation without telling everyone. Nevada is the reverse, by court decision. Connecticut's all-party rule is civil and written for "telephonic" communications, and nothing we read says whether a video meeting counts.

Some statutes turn on secrecy. Illinois requires recording to be "surreptitious" before the all-party rule bites, and Massachusetts bans recording "secretly". In the Massachusetts case, the court said the problem "could have been avoided" if the person had announced the recording "or even held the tape recorder in plain sight". Open, announced recording is a different act under both.

We only read these states. Everywhere else we'd expect the federal one-party baseline, but we didn't read every state's code, and we didn't check Vermont, which popular lists describe as having no statute. Check yours before you rely on it.

The client's state can matter as much as yours

A call has more than one location. In 2006 the California Supreme Court heard a case about a firm in Georgia, a one-party state, that recorded calls with clients in California (39 Cal. 4th 95). It concluded California law applied, and let the claim to stop the practice go forward. It declined damages for the past recordings only because, until that ruling, a firm could reasonably have relied on Georgia's rule. Nobody can claim that reliance now.

The practical reading: if one person on the call is in an all-party state, plan to that state's rule. For a solo business with clients in several states, that means planning to the strictest one on the call.

One habit that fits every rule we read

You don't need fourteen procedures. One habit meets the text of every statute in the table:

At the start of the call, before anything substantive, say that the call is being recorded and transcribed by a notetaker, say what happens to the recording, and wait for a yes. Make sure that exchange is on the recording.

Here's why each part is there:

• On the recording, because Washington's statute says an announcement counts as consent "PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded", and Connecticut accepts consent "obtained at the start of, the recording" or a notice "recorded at the beginning".
• Out loud, not only in an email, because an unanswered email isn't consent, and the Otter order shows a bot's presence in the participant list may not prove anyone understood what it was doing.
• Wait for a yes, because California, Florida, Maryland, New Hampshire and Pennsylvania ask for consent, not just awareness.
• Say what happens to the recording, because the Otter order turned on alleged use of the recordings for the vendor's own purposes, and "retained by Otter" is exactly what the court said a participant might not have known.

If someone says no, turn it off and take notes by hand. It is their conversation too.

Settings worth changing today

• Stop the notetaker joining meetings on its own, at least for meetings other people organise. A tool that auto-joins your calendar joins calls where you haven't said anything yet.
• Don't count a consent email as consent. If your tool sends one, treat silence as "not yet" and ask on the call.
• Turn on Teams' participant agreement setting if you administer your own tenant: Teams admin center, Meetings, Meeting policies, "Require participant agreement for recording and transcription".
• Find out whether your tool uses your recordings to improve its models, and opt out where you can. The Otter order's reasoning makes the vendor's own use of the audio central. Opting out won't settle anyone's legal position, but it removes the fact the court leaned on, and it's a fair question for a client to ask you. What your plan lets an AI vendor do with client material is the subject of whether you can put client data into ChatGPT, and the same questions apply to a transcript.
• Be careful with speaker identification if you record people in Illinois. Both biometric privacy claims against Otter survived, on allegations that it built voiceprints to recognise speakers. Whether a solo user of such a feature has obligations of their own under that law is not something the order decides.

For choosing between the tools themselves, we compared five of them in AI meeting notes for solopreneurs. And if you're turning transcripts into deliverables, who owns AI-generated work covers the other question clients ask. If what you pull from a call is a client's quote for your marketing, the FTC's rules on that are in AI testimonials and the FTC fake reviews rule. The rest of this set of fine-print articles covers Canva's license for client work, what payment processors' contracts let them do with your money and AI accessibility widgets after the FTC's accessiBe order.

[ADD YOUR OWN EXAMPLE HERE — the sentence you actually say at the start of a recorded call, and how clients have responded to it.]

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Last reviewed 10 September 2026. Not legal advice; we are not lawyers. The Otter order (ECF No. 68, 13 August 2026) was read in full from the GPO-authenticated copy on GovInfo, and the docket entries after it on CourtListener. The Granola complaint (No. 3:26-cv-07926, filed 30 July 2026) was read from the CourtListener archive. Statutes for California, Connecticut, Delaware, Florida, Maryland, Montana and Washington were read on the official state code sites. Official sites for Illinois, Massachusetts, Michigan, Nevada, New Hampshire, Oregon and Pennsylvania blocked or refused our connection, so those came from FindLaw's and oregon.public.law's reproductions, or from the state court opinions cited, read on CourtListener. Vendor terms and help pages were read on each vendor's own site on the same date and will change. This article contains no affiliate links.