Under Penal Code 632 PC, California law defines the crime of eavesdropping as listening in on, or recording, another person’s confidential communication. The offense can be prosecuted as either 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. This means all parties to a telephone call or conversation must give their consent before someone can record it.
PC 632 states that “a person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”
- recording a boss’s conversations with other employees.
- recording the conversation of a hotel guest while staying in the next room.
- using a laptop in an intimate restaurant to record the conversation between two patrons.
A defendant can fight an eavesdropping charge with a legal defense. A few common defenses are:
- no intent,
- consent, and/or
- no electronic device.
A violation of this code section is a wobbler. This means that it can be charged as either a:
- misdemeanor, or
Misdemeanor eavesdropping is punishable by custody in county jail for up to one year.
Felony eavesdropping is punishable by imprisonment in state prison for up to three years.
Our California criminal defense attorneys will discuss the following in this article:
- 1. When is eavesdropping a crime in California?
- 2. Are there defenses to Penal Code 632 charges?
- 3. What are the penalties for eavesdropping?
- 4. Are recordings admissible as evidence in court?
- 5. What are the rules for surveillance and video cameras?
- 6. Are there civil remedies for recording “victims?”
- 7. Are there related offenses?
1. When is eavesdropping a crime in California?
Penal Code 632 PC is the California statute that makes eavesdropping a crime.1
A prosecutor must prove the following to convict a person of this offense:
- the defendant intentionally eavesdropped on, or recorded, someone else’s in-person conversation or telephone conversation,
- the defendant did so by using an electronic device,
- the conversation was one that would be considered confidential, and
- the defendant did not have the consent of all parties to the conversation to eavesdrop on it or record it.2
An “electronic device” includes such things as:
- telephones, and
- laptop computers.
A conversation is considered “confidential” if:
- any party to that conversation has an,
- objectively reasonable expectation that the conversation is not being overheard or recorded.3
Note that a judge or jury will determine if a conversation was confidential by examining all of the facts within a case.
Example: A conversation between two co-workers is likely confidential if it takes place in one of the employee’s locked offices.
This same conversation though is likely not confidential if it takes place in the work’s break room during a crowded lunchtime.
Note that conversations can be recorded without consent when:
- they are made in public places or government proceedings, and
- the participants expect that they will be overheard or recorded.
2. Are there defenses to Penal Code 632 charges?
A defendant can raise a legal defense to challenge an eavesdropping charge.
Three common defenses are that there was:
- no intent to eavesdrop,
- consent, and/or
- no electronic device.
2.1. No intent
A defendant is only guilty under this statute if he intended to eavesdrop. This means that is a legal defense if the accused did not act with intent. Perhaps, for example, he overheard a private conversation on accident.
California is a two-party consent state. This means it is a defense for an accused to show that:
- both parties to a conversation,
- gave their consent to have it recorded or listened in on.
Note that the defense does not work if only one party gives consent.
2.3. No electronic device
A defendant is only guilty if he eavesdropped using an electronic device. Therefore, it is always a defense for an accused to show that:
- while he may have listened in on a private conversation,
- he did not use any such device.
3. What are the penalties for eavesdropping?
A violation of 632 PC is a wobbler. This means a prosecutor can charge it 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 $2,500.4
Felony eavesdropping is punishable by:
- imprisonment in state prison for up to three years, and/or
- a maximum fine of $2,500.5
A person convicted of this crime is entitled to an expungement provided that:
- he successfully completes probation, or
- he completes a jail term (whichever is relevant).
Under Penal Code 1203.4, an expungement releases a person from all:
- penalties, and
arising out of the conviction.6
4. Are recordings admissible as evidence in court?
Recordings are admissible in court if they were taken by police. They are also admissible, in some instances, when taken by private citizens.
PC 632 eavesdropping laws do not apply:
- to law enforcement officers,
- while they are working in their official capacities.7
This means that:
- they can record private conversations, and
- these recordings can be admitted in court as evidence.
A private citizen can also legally record a confidential communication if:
- the person recording is one of the parties to the conversation, and
- he is recording the conversation to gather evidence that the other party committed either:
- a. extortion, under Penal Code 518 PC,
- b. kidnapping, under Penal Code 207 PC,
- c. bribery, under Penal Code 67 PC,
- d. annoying phone calls, under Penal Code 653m PC, or
- e. any felony involving violence against another person (e.g., murder, under Penal Code 187 PC).8
If all of these conditions are met, then:
- the private citizen can legally record the conversation, and
- the recording can be admitted as evidence.9
5. What are the rules for surveillance and video cameras?
There is no laws that prohibits a private person to:
- use video surveillance cameras,
- around his property,
- for the purposes of security.
But these cameras cannot record something that a person has a reasonable expectation of privacy in. They also cannot invade a person’s privacy.
The United States “video voyeurism law” is also at play here. The law says it is a federal crime for a person to knowingly and intentionally:
- capture an image of a private area of an individual,
- without that person’s consent,
- under circumstances in which that person has a “reasonable expectation of privacy.”10
The latter means that:
- a reasonable person would believe that,
- his private parts would not be visible or photographed by the public.11
6. Are their civil remedies for recording “victims?”
Per Penal Code 637.2 PC, there are civil remedies for recording “victims.” A plaintiff may bring a civil lawsuit for damages against someone who eavesdropped on him.12
If the “victim” claims that he suffered economic damages as a result of the eavesdropping, he may sue for:
- up to three times the amount of damages he suffered, or
- $5,000, whichever is greater.13
If the plaintiff did not suffer any economic damages at all, he can still sue for up to $5,000.14
7. Are there related offenses?
There are three crimes related to eavesdropping. These are:
- wiretapping – PC 631
- peeking while loitering – PC 647i, and
- criminal invasion of privacy – PC 647j.
7.1. Wiretapping – PC 631
Per Penal Code 631 PC, it is a crime for a person to:
- “tap” directly into someone else’s phone line, and
- listen to all conversations that take place on that line.
Note that eavesdropping is committed by using an electronic device that does not involve the wiretap of a phone line.
7.2. Peeking while loitering – PC 647i
Penal Code 647i PC makes it a misdemeanor to:
- peek into an inhabited building, and
- do so while loitering on private property.
This law involves watching another person and not listening to their words.
7.3. Criminal invasion of privacy – PC 647j
Penal Code 647j makes it a misdemeanor to violate someone’s privacy by:
- using a device to invade a person’s privacy,
- secretly photographing a person’s body for the purpose of sexual gratification, or
- secretly photographing someone to view that person’s body or undergarments.
Again, this law involves watching another person as opposed to listening in on their conversations.
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. We create attorney-client relationships throughout the state, including Los Angeles, San Diego, San Francisco, and more.
For similar accusations in Nevada, please see our article on “NRS 200.650 – Invasion of Privacy By Eavesdropping in Nevada law.”
For similar accusations in Colorado, please see our article on “Wiretapping and Eavesdropping Laws in Colorado.”
- California Penal Code 632 PC. See also the California Invasion of Privacy Act.
- CACI No. 1809 – Recording of Confidential Information. Judicial Council of California Civil Jury Instructions (2017 edition).
- See same. See also Flanagan v. Flanagan (2002) 27 Cal.4th766; and, Deeter v. Angus (1986) 179 Cal.App.3d 241.
- California Penal Code 632 PC.
- See same. See also Penal Code 1170f.
- California Penal Code 1203.4 PC.
- California Penal Code 633 PC.
- California Penal Code section 633.5 PC.
- See same.
- 18 USC 1801a.
- 18 USC 1801b5.
- California Penal Code 637.2 PC. See also Warden v. Kahn (1979) 99 Cal.App.3d. 805.
- See same.
- See same.