AI Notetaker Consent After the Otter Ruling: What to Say Before You Record a Call

On August 13, 2026, a federal judge in Northern California refused to throw out the core of a class action against Otter.ai. The plaintiffs say Otter’s notetaker joins Zoom and Teams calls as a “silent participant” and records people who never agreed to it. In the order, Judge Eumi K. Lee let the federal Wiretap Act, California Invasion of Privacy Act, Illinois biometric privacy, and unfair competition claims go forward.

If you use an AI notetaker, this matters to you even though you aren’t the defendant. A July 2026 survey of 500 employed US adults found that 33.4% had seen an AI notetaker or transcription bot in their work meetings. Of those, only 34.7% said they were always asked first. The asking is the part you control, and it takes about ten seconds.

The court’s question was who the tool really works for

The legal fight is about something narrower than “are AI notes allowed.” Under California’s wiretap statute, the order notes, “a party to a communication can record it (and is not eavesdropping when it does).” Otter argued that its notetaker is just the host’s recording tool, an extension of a person who was already on the call.

The judge said that argument can work for software that only serves its user. But the plaintiffs allege that Otter also keeps conversation data and uses it to train its own speech and machine-learning models. The court held that “because Plaintiffs plausibly allege that Otter independently collects, retains, and uses communications for its own commercial purposes, they have sufficiently alleged that Otter is a third-party eavesdropper.” Some claims were dismissed, including the computer-fraud counts, and the plaintiffs can amend those.

Keep the stage of the case in mind. This was a ruling on the pleadings, which means the court assumed the plaintiffs’ account was true and asked only whether it states a claim. Nothing has been proven. Still, the reasoning gives every notetaker user a useful test. A tool that processes your call for you looks like you taking notes. A tool that also keeps the call for its maker’s own purposes starts to look like another listener, and the people on the call never agreed to that listener.

No bot in the participant list doesn’t mean nobody is listening

Many people have moved away from bots that join the meeting toward desktop apps that capture audio straight from the laptop. That shift is the subject of the next case. In Chamberlain v. Granola, Inc., filed July 30, 2026, the plaintiff alleges that Granola transcribes meetings through system audio and the microphone with no visible bot, according to a Barnes & Thornburg alert. The complaint quotes the company’s own marketing line, “Other people in the room won’t know it’s there,” and says chat notifications are off by default. These are allegations, and Granola hasn’t answered them on the merits.

The lesson cuts both ways. A bot in the participant list was never real consent. In the Otter case, Otter argued that one plaintiff should have known he was being recorded because he could see the notetaker on the call, and the court called that a factual dispute it couldn’t settle at this stage. And when there’s no bot at all, the other people have no signal whatsoever. The only notice they get is the one you give them.

That applies to every app that listens through your computer, ExtraBrain included. ExtraBrain doesn’t join your meeting as a participant, so telling people is your job, not the software’s.

Your state’s rule is only half the answer

Federal law is the floor. The Wiretap Act allows recording when you’re a party to the conversation or one party has consented, unless the recording is made to commit a criminal or tortious act. Many people stop reading there and assume one-party consent covers them.

It often doesn’t. The Reporters Committee for Freedom of the Press lists California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington as requiring every party’s consent, with Michigan included at least for third-party recordings. Connecticut and Nevada apply that rule to phone calls. California’s Penal Code 632 covers any “confidential communication” recorded without the consent of all parties, with a fine of up to $2,500 per violation for a first offense.

Work calls rarely stay inside one state. Your client is in Chicago, your colleague is in Seattle, and you’re in Texas. The RCFP guide notes that courts disagree about which state’s law governs a call that crosses state lines, and it advises assuming the stricter law applies. For a remote team, the practical rule is to treat every call as all-party consent. Outside the US the rules are different again, so check local law if your calls cross borders. None of this is legal advice. It’s the reason asking is cheaper than working out whether you had to.

The same survey found that 41.8% of workers had no idea recording laws apply to work meetings at all. You can’t count on the other people on the call to know their rights, so don’t treat their silence as permission.

Ask in the first thirty seconds, and mean it

Ask before the agenda, while people are still settling in. A plain question at the start gives everyone a real choice, which a recording they find out about afterward never does:

“Quick one before we start: I use a transcription app so I can listen instead of typing. It runs on my laptop, and I only use it for my own notes and action items. Is everyone okay with that?”

Change the details so they’re true for your setup. If your tool sends audio to a cloud transcription service, don’t say it runs on your laptop. If it emails a summary to every attendee, say so, because that’s a bigger ask than private notes. For a client call, add how long you keep the file: “I delete the recording once the follow-up email goes out.”

The answer also has to be one you can live with. If someone hesitates or says no, turn the tool off while they watch and take notes by hand. Arguing (“it’s only for me”) spends goodwill you’ll want later in the project. For calls where one person joins halfway through, ask again when they arrive. In a job interview, the interviewer’s rules decide this. Ask, and accept the answer.

If you run the meeting, a line in the calendar invite helps: “This call may be transcribed for notes. Reply if you’d prefer it isn’t.” It doesn’t replace asking out loud, but it gives people a chance to raise it privately.

Five questions to ask before a tool hears a sensitive call

The Otter ruling turns on what happens to the audio after the call, so that’s where to look. Before you use any notetaker on a client, HR, legal, or medical conversation, find the answers to these:

1. Does the vendor keep audio or transcripts on its servers, and for how long?
2. Is your data used to train the vendor’s models, and is that on by default?
3. Where does transcription happen: on your computer or on a provider’s servers?
4. Who receives the output automatically? Some tools share summaries with every attendee.
5. When you delete a session, is the copy deleted everywhere, or only on your screen?

Hold ExtraBrain to the same questions. The data flow page and the privacy policy spell out the answers. ExtraBrain stores saved sessions, transcripts, and screenshots on your computer. Local Parakeet transcription processes speech on your machine, and local Gemma can run the AI locally in supported builds. If you pick a cloud AI provider or Deepgram transcription instead, transcript text or audio goes to that provider under its own retention rules. A separate analytics setting can upload AI prompts and responses, which can include transcript text. Turn it off in Settings → Privacy if you want nothing to leave your computer that way. Deleting a local session doesn’t retract anything already sent to a cloud provider.

None of these settings replaces asking. A fully local setup does remove one part of the problem the Otter judge described, because no vendor in the middle keeps the call for its own use. You still have to ask everyone first.

Notes from a call you were allowed to record are better notes

The reason to use a notetaker at all is to catch what you’d otherwise lose: the number the client said once, the deadline that moved, the “can you also send me” at minute 47. Those notes are only useful if you can quote them back without anyone feeling ambushed. A transcript made after a clear yes is something you can share and act on. One made in secret is a liability you’re keeping on your laptop.

If you want a private setup, ExtraBrain gives you live transcription and post-call summaries on Mac and Windows, with local transcription and on-device AI available. For more on why transcripts deserve care after the call ends, read why your interview transcript is sensitive data. For capturing decisions in finance and ops meetings without adding a bot, see this guide.

Tomorrow, before your first call, say the line out loud once to yourself. The second time, on the call itself, it will sound like what it is, a normal thing a careful person says.