- jail time, and
- a civil lawsuit.
In a phone call, both sides of the call have to consent to a recording. This makes California a “two-party consent” state.
What is wiretapping?
Wiretapping is using technology to record a confidential conversation. It is a violation of privacy.
The California Invasion of Privacy Act1 forbids wiretapping. The Act makes it a crime. The violator can receive a fine. They can be sent to jail. Victims of a wiretap can file a civil lawsuit against the violator. The civil lawsuit can recover compensation for the invasion of privacy.
To recover compensation after a wiretap, the plaintiff of a civil lawsuit has to show that:
- the defendant intentionally used an electronic device to eavesdrop or record a conversation,
- the plaintiff had a reasonable expectation that the conversation was not being recorded or overheard,
- the defendant did not have the consent of all the parties to record the conversation,
- the plaintiff was harmed, and
- the defendant’s conduct caused that harm.2
The crime of wiretapping is codified in Penal Code 631 PC. The Act makes it illegal to:
- use a machine to make an unauthorized connection to a telephone line,
- willfully try to read a phone message without the consent of all parties to the message,
- use or try to use any information gained via a wiretap, or
- aiding or conspiring to commit wiretapping.3
What is a confidential conversation?
Conversations can be confidential. They are if anyone in it takes steps to make it a private conversation.4 These steps have to create an objectively reasonable expectation of privacy.5
This expectation of privacy is case-specific. The facts of the case matter. Important factors will include:
- who initiated the call,
- the purpose of the call,
- the call’s duration,
- prior communications between the parties,
- whether confidential or private information was provided during the call, and
- whether there was a warning that the call was being recorded.6
Making a recording without consent violates the California Invasion of Privacy Act.
How can I get consent?
Private conversations can be recorded if everyone in it consents. Adequate consent can be express or implied.
Anyone can get express consent by asking if they can record a conversation. All of the people have to say it can be recorded. If they do, it is not wiretapping.
Implied consent can happen if someone says that they are recording. Everyone has to be aware of the recording. If the conversation continues, then there is implied consent.
Anyone with consent to record a conversation is not wiretapping. They are not violating the California Invasion of Privacy Act.
Example: A journalist is conducting a phone interview with an expert. Before the conversation begins, she says that she is recording it. The expert says nothing, but continues to answer questions.
Is California a “two-party consent” state?
California is a “two-party consent” state. Anyone recording a phone call has to get the other party’s consent.
This makes California different from many other states. Other states are “single-party consent” states. Only one person in a phone call has to consent to the recording. This can be the person making the recording. As long as they are on the call, they can record it.
What are the penalties?
The California Invasion of Privacy Act makes wiretappers both criminally and civilly liable. These penalties can be significant.
In California, the crime of wiretapping is a wobbler. It can be charged as a misdemeanor or a felony.
If charged as a misdemeanor, the penalties include up to:
- 1 year in county jail, and/or
- $2,500 in fines, per violation.7
If charged as a felony, the jail sentence can be for 16 months, 2 years, or 3 years.8
A prior conviction for wiretapping will increase the fines. They can rise to a maximum of $10,000 per violation.
Violators can also face civil liability. They can be sued by the people they illegally recorded. These lawsuits carry statutory penalties for the greater of:
- $5,000 for each illegally recorded call, or
- 3 times the amount of actual damages the victim suffered.9
What if I was the one being recorded?
If you were illegally recorded in violation of the Act, you can be entitled to compensatory damages. You can file a personal injury lawsuit for violation of your privacy. If successful, you could recover the statutory penalties of:
- $5,000 for each violation, or
- 3 times the actual damages you suffered.
A lawsuit can be filed, even if the caller was from another state.10 As long as you were in California, you can bring an action.
There is only a one-year statute of limitations for filing this lawsuit.11 Victims who file after the year has passed will have their case dismissed.
- California Penal Code 630 PC et seq.
- California Civil Jury Instructions (CACI) 1809.
- California Penal Code 631 PC.
- California Penal Code 632 PC (“confidential communication” means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded”).
- Flanagan v. Flanagan, 27 Cal.4th 766 (2002).
- See Kight v. CashCall, Inc., 200 Cal.App.4th 1377 (2011).
- California Penal Code 631 PC.
- California Penal Code 1170(h).
- California Penal Code 637.2.
- Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006)..
- NEI Contracting & Engineering, Inc. v. Hanson Aggregates Pacific Southwest, Inc., No. 3:12-cv-01685-BAS(JLB) (S.D. Cal. Mar. 24, 2015).