When is “Eavesdropping” a Crime in California?

Posted on January 28, 2022

Under California law, eavesdropping is the crime where people listen in on a private conversation without the knowledge or consent of the parties, and use either a recording device to record the conversation or an amplifying device to help hear the conversation. The offense can lead to either misdemeanor or felony charges with penalties as severe as up to three years in prison.

1. How does California law define “eavesdropping”?

Penal Code 632 PC is the California statute that makes eavesdropping a crime.

A prosecutor must prove the following to convict a person of this offense:

1. the defendant intentionally eavesdropped on, or recorded, someone else’s in-person conversation or telephone conversation,
2. the defendant did so by using an electronic device,
3. the conversation would be considered confidential, and
4. the defendant did not have the consent of all parties to the conversation to eavesdrop on it or record it.¹

Consider, for example, the scenario where you’re in the bathroom stall at work, and two co-workers come in and they start talking about some confidential matter. They don’t realize you’re in the bathroom stall, and you quietly overhear their conversation. That is not eavesdropping. That’s at least not illegal eavesdropping as the law defines it because you’re not using any device to amplify or record the conversation.

But suppose you take out your iPhone and start recording their conversation. The recording makes your actions illegal, and you could be guilty of eavesdropping.

2. What are the penalties?

A violation of 632 PC is a wobbler. A wobbler is an offense that a prosecutor can charge as either a misdemeanor or a felony, depending on:

• the facts of the case, and
• the criminal history of the defendant.

Misdemeanor eavesdropping is punishable by:

• custody in county jail for up to one year, and/or
• a maximum fine of $2,500.²

Felony eavesdropping is punishable by:

• imprisonment in state prison for up to three years, and/or
• a maximum fine of $2,500.³

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