California “Wiretapping” Laws – Penal Code § 631 PC

Penal Code § 631 PC makes it illegal to use recording devices to intercept or eavesdrop on confidential communications without the consent of all parties involved. This includes phone calls, text messages, and other forms of electronic communication.

Illegal wiretapping can be charged as

• a misdemeanor or
• a felony and
• carries a maximum sentence of up to 3 years in jail.

Note that California is a two-party consent state, meaning that both parties to a conversation must give consent if it is to be lawfully recorded.

In this article, we will quote the full language of the code section, and then provide further legal analysis. The language of the code section reads as follows:

631. (a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment in the county jail or pursuant to subdivision (h) of Section 1170. If the person has previously been convicted of a violation of this section or Section 632, 632.5, 632.6, 632.7, or 636, the offense is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.

(b) This section shall not apply to any of the following:

(1) Any public utility, or telephone company, engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited herein are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility or telephone company.

(2) The use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility.

(3) Any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.

(c) For purposes of this section, “telephone company” is defined in paragraph (3) of subdivision (c) of Section 638.

(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

Most people think of wiretapping, or telephone tapping, as something that law enforcement officers do to solve criminal cases. In fact, though, private citizens engage in the illegal recording of a telephone conversation – often in order to gain an advantage over a business competitor or an opponent in a legal dispute by finding out their secrets. And you may not know that California law makes it a crime for people who are not law enforcement officers to tap someone’s phone without their permission.²

In this article, our criminal defense attorneys explain California wiretapping law by answering these questions:

• 1. When is wiretapping a crime in California?
  • 1.1. Prohibited activities
  • 1.2. Penalties
  • 1.3. No use as evidence
  • 1.4. Civil lawsuits
  • 1.5. Related offenses
• 2. How does Penal Code 631 PC apply to law enforcement?
  • 2.1. Court order required
  • 2.2. Notice
  • 2.3. Motions to suppress illegal wiretap evidence
• 3. Is the state allowed to wiretap prisoners’ telephone calls?

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

1. When is wiretapping a crime in California?

If you are accused of the California crime of wiretapping, you may feel more than a little surprised. The fact that telephone tapping can lead to criminal penalties is not widely-known, and many people may think, “If cops do it, why can’t I?”

In fact, though, California state law makes it a crime for private citizens to tap someone’s phone.⁴ (As we’ll discuss in Section 2 below, a very different set of rules applies to law enforcement: police may use wiretaps to help with criminal investigations, provided they obtain a court order.⁵ )

1.1. Prohibited activities

California’s law against wiretapping, Penal Code 631 PC, lists the activities that would constitute illegal wiretapping. These are:

1. Using any kind of machine or instrument to intentionally tap into, or make an unauthorized connection to, any telegraph or telephone line,
2. Reading or attempting to read or learn the contents of any message passing over a telephone or other wire, willfully and without the permission of all of the parties to the message,
3. Using or attempting to use or communicate any information gained in this way, AND
4. Aiding or conspiring with anyone else to do anything on this list.⁶

Example: Robert is in the middle of a nasty divorce from his wife. With the help of a friend who is a private investigator, Robert taps his own phone. He plans to record a private conversation with his wife and use them against her in the divorce proceeding.

Robert is guilty of the crime of wiretapping even though he put the tap on his own phone…because his plan was to use the tap to record conversations with his wife without her permission. California is not a one party consent state. In addition, the private investigator friend who helped Robert set up the tap is also guilty of wiretapping.⁷

Intercepting cell phone or cordless phone calls

These days many (even most) phone calls don’t take place over traditional landline phones. California also makes it a crime to intercept calls on cellular phones and cordless phones.⁸

Under Penal Code sections 632.5 and 632.6 PC, if you intercept a call between two cell phones, two cordless phones, a cell or cordless phone and a landline phone, OR a cell phone and a cordless phone, with criminal intent and without the consent of both parties to the call…then you face the same penalties you would face for tapping a regular phone line.⁹

1.2. Penalties

In most cases, the California crime of telephone tapping (or interception of cell or cordless phone calls) is a wobbler in California law.¹⁰ This means that the prosecutor may choose to try it as either a misdemeanor or a felony, depending on the circumstances of the case and the defendant’s criminal history.

If wiretapping is charged as a misdemeanor, then the maximum penalties are a fine of up to two thousand five hundred dollars ($2,500), up to one (1) year in county jail, or both.¹¹

But if it is charged as a felony, then the jail sentence is sixteen (16) months, two (2) years, or three (3) years.¹²

Also, if you have previously been convicted of wiretapping or of certain other crimes associated with invasion of privacy (including eavesdropping, intercepting a cell phone call, and intercepting a call on a cordless phone), the maximum fine rises to ten thousand dollars ($10,000).¹³

1.3. No use as evidence

Any evidence obtained through illegal wiretapping may not be used in any court proceeding (except a criminal trial for violating Penal Code 631 by the wiretapper).¹⁴ So, if you obtained information through an illegal wiretap with the goal of using it against someone else in a court case, you are out of luck.

Example: In the example above, Robert tapped his own phone so he could record conversations with his wife and use those as evidence in their divorce proceedings. But because he did not have her permission to tap the phone, not only may Robert face criminal charges for wiretapping…he also will not be able to use the conversations as evidence in the divorce case.

1.4. Civil lawsuits

If you are accused of criminal wiretapping, you may also find yourself facing a lawsuit by the person or people who are the supposed “victims” of the wiretapping (that is, people whose calls were overheard or recorded without their permission). California criminal law, Penal Code 637.2 PC, provides that such people can bring a civil suit for damages against someone who committed criminal wiretapping.¹⁵

If the person suing you claims that they suffered economic damages as a result of the wiretapping, they may sue you for up to three (3) times the amount of damages they suffered OR five thousand dollars ($5,000), whichever is greater.¹⁶ And even if they didn’t suffer any damages at all, they can still sue you for up to five thousand dollars ($5,000).¹⁷

1.5. Related offenses: eavesdropping (Penal Code 632)

The California law of eavesdropping (Penal Code 632) is closely related to and may be charged along with the crime of wiretapping.¹⁸

Eavesdropping and wiretapping are similar, but they’re not identical. Basically, the difference is that wiretapping is the act of intercepting and listening in on conversations by tapping into the phone line …while eavesdropping is the act of listening in on conversations using an electronic device but without tapping a phone line. ¹⁹ The statute also applies to hidden video cameras and secret video recordings. If the conversation occurred in a public place where the speaker did not have a reasonable expectation of privacy, it may not be considered improper eavesdropping

Example: Chris is a small business owner who suspects two employees are working together to embezzle money from the business. One of the employees is based in the business’s Los Angeles office, and the other is based in the San Diego office. So Chris, who visits both offices frequently, sets up secret microphones in the offices of both. He uses these microphones to record the phone conversations that take place between the two employees.

Chris is listening in on phone conversations without permission…but because he didn’t actually tap the phone line, he is potentially guilty of eavesdropping, not wiretapping.

Like wiretapping, eavesdropping is a wobbler.²⁰ The maximum misdemeanor penalty is up to one (1) year in county jail, a fine, or both. The maximum felony penalty is sixteen (16) months, two (2) years, or three (3) years in state prison, a fine, or both.²¹

Another related offense to wiretapping is Penal Code 591 PC damaging a telephone line. If you cut or damage a telephone wire or phone equipment with malicious intent, you can be charged with this wobbler crime. An unsuccessful attempt at eavesdropping may lead to charges under this law instead.

2. How does Penal Code 631 PC apply to law enforcement?

As you might expect, the people most motivated to set wiretaps are police and other law enforcement officers. Wiretaps allow them to “spy” on people they suspect of being involved in crimes…and can provide compelling evidence that those people really were involved.

Because wiretapping is such a powerful law enforcement tool, police ARE allowed to do it legally.²² But there are limits on when and how they can use a wiretap.

In this section, we will explain the requirements police have to fulfill in order to tap a phone legally…and what you can do about it if you are charged with a crime based on wiretap evidence that was not obtained in compliance with those requirements.

2.1. Court order required

Police officers are required to obtain an order from a judge authorizing them to tap a phone line.²³ And the judge can only issue this order if s/he determines, based on the officer’s application, that the following things are all true:

1. There is probable cause to believe that someone is committing, has committed, or is about to commit one of a limited list of serious felonies.²⁴In other words, cops can’t get an order for a wiretap to help them solve just any crime. They have to have probable cause to believe that one of a few particular crimes has occurred, or is occurring, or is about to occur. These crimes are:
   • Serious drug crimes (manufacturing, possession for sale, or selling or transportation) involving more than three (3) pounds or ten (10) gallons of heroin, cocaine, PCP, or meth (but not, for example, marijuana);
   • Murder or solicitation to commit murder,
   • Kidnapping for ransom or extortion, or in order to commit robbery or rape,
   • Certain felonies involving bombs or other destructive devices,
   • A felony violation of California’s street gang law,
   • Acts of terrorism involving weapons of mass destruction or biological agents, and
   • Any attempt or conspiracy to commit any of the above crimes.²⁵
2. There is probable cause to believe that the wiretap will actually lead law enforcement to overhear particular communications concerning the illegal activity.²⁶
3. There is probable cause to believe that the place where the wire is located is being used or will be used to commit the crime, or else belongs to or is commonly used by the person whose communications will be intercepted.²⁷ AND
4. Normal investigative procedures that don’t rely on wiretaps have been tried and have failed, or appear unlikely to succeed if they are tried, or will be too dangerous if they are tried.²⁸

For example, if the police have reason to believe that a major bank robbery is about to take place, and a wiretap of a certain phone would almost certainly give them the evidence they need to arrest the ringleader and stop the robbery…they still will not be able to get an order authorizing the wiretap, because robbery is not one of the specified crimes.

Orders allowing wiretaps don’t stay valid for very long. The maximum length of time an order may be in effect is ten (10) days from the date of the order, or thirty (30) days from the date communication was first intercepted…whichever comes first.²⁹ (It is not uncommon for cops to set up a wiretap first, and then go to a judge for an order authorizing it, which will make the evidence from it admissible.) Police can then file for an extension of the original order, which can’t last longer than another thirty (30) days.³⁰

Just how often do police actually succeed in getting court authorization for a wiretap? The criteria are strict…but it seems as if once the basic criteria (such as type of crime) are met, it’s not at all hard for cops to get orders authorizing wiretaps. In 2011, California judges authorized 630 wiretaps.³¹ (The overwhelming majority of these were for drug crimes.³² ) AND, nationwide, of over 2,700 applications for wiretaps submitted in all state and federal courts, only TWO were not granted!³³ So clearly courts are not shy about granting these requests when cops make them.

2.2. Notice

Suppose law enforcement officials apply for an order authorizing a wiretap that will intercept your communications. In that case, they must notify you in most cases…even if the application was rejected.³⁴ The notice is not required until after the authorized period for the wiretap is over. And the only information it needs to contain is the date of the order authorizing the wiretap, the period during which the wiretapping was authorized, and whether or not the communication was actually intercepted.³⁵

According to Lancaster criminal defense attorney John Murray:³⁶

“If you receive a notice telling you that phone calls you’ve been part of have been wiretapped, that notice won’t necessarily tell you anything about what happened on those calls…or even what the supposed crime was that the police were trying to investigate. You CAN file a motion with the judge who granted the wiretapping order, asking to inspect whatever portions of the original application, the order, and the intercepted communications the judge sees fit to allow. But there’s no guarantee the judge will honor your request.”

However, suppose you are charged with a crime after being identified by a wiretap. In that case, the prosecution is required to give you a copy of all recorded communications from which evidence against you was derived, along with the original application and order.³⁷ In most cases, you have the right to receive these materials not less than ten (10) days before the trial or proceeding in which wiretap evidence will be used.³⁸

2.3. Motions to suppress illegal wiretap evidence

If you are accused of a crime, and evidence obtained from a wiretap is introduced against you…and it is not clear that all of the requirements we just discussed for law enforcement use of wiretap evidence were met…then you can file a Penal Code 1538.5 “Motion to Suppress Evidence.” Motions to Suppress Evidence are most commonly used to throw out evidence that police obtain when they violate California search and seizures laws³⁹ …but motions to suppress can also be used to challenge wiretap evidence.⁴⁰

You can challenge wiretap evidence on the grounds that it was obtained without a valid court order…or, more likely, that the court order was improperly granted. For example, the court’s finding that normal investigation methods were not likely to succeed or would be too dangerous might have been invalid.⁴¹ An experienced California criminal defense lawyer can help you determine what kind of argument might make the most sense in the context of your case.

3. Is the state allowed to wiretap prisoners’ telephone calls?

Suppose you have been arrested and are in police custody, or you are serving time for an offense. In that case, you should be aware of special privacy law that applies to a wiretap of prisoners’ telephone calls and eavesdropping on their conversations.

First of all, it is a felony for anyone (including jail staff) to use an electronic device to eavesdrop on or record any conversation between someone who is in the custody of law enforcement (for example, a prisoner) and the following individuals:

1. The prisoner’s lawyer,
2. The prisoner’s religious advisor, and
3. The prisoner’s licensed physician.⁴²

It is also a crime, but only a wobbler, for anyone to eavesdrop without an electronic device on conversations between a prisoner and any of those people…provided that those conversations occur in a place where there’s a reasonable expectation of privacy, like a custody holding room.⁴³

In other words, you have a very solid right to talk to your lawyer, religious advisor, or doctor while you are in prison, without anyone listening in.

But the situation is different with regard to phone calls you make to people other than these. If you are in prison, you will likely be warned that all outgoing telephone calls you make will be recorded. This is absolutely true. And as long as the calls don’t involve confidential conversations with, say, your lawyer, they can be used as evidence against you in your criminal proceeding.⁴⁴

Example: David is arrested on charges of domestic violence against his girlfriend, Mary. While he is in jail awaiting his trial, David calls Mary many times, and they talk about the events that led to the charges. The jail has a sign next to the phone warning inmates that their calls may be monitored and recorded, with the name of the phone company-AT&T-by the sign. The conversations between David and Mary are recorded, and the district attorney uses them as evidence against David.

This evidence is admitted at David’s trial, because he was warned that his calls could be recorded….even though the name of AT&T on the sign may have led him to believe that it was the phone company, and not jail authorities, that might record his calls.⁴⁵

Finally, the general rule that makes wiretapping a crime under Penal Code 631 does not apply to telephone calls over a phone system that is used exclusively within a jail or prison.⁴⁶ So, in other words, it is not a crime for a person to tap a phone line that can be used only for calls within a jail or prison (and not for outside calls).

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