Penal Code § 632 PC – California “Eavesdropping” Laws

California Penal Code § 632 prohibits eavesdropping, which is defined as using an electronic amplifying or recording device to listen in on 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.

Examples

• 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.

The language of the code section reads as follows:

632. (a) 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.

Defenses

You can fight an eavesdropping charge with a legal defense. A few common defenses are:

• no intent,
• consent, and/or
• no electronic device.

Penalties

A violation of this code section is a wobbler. This means that it can be charged as either a:

• misdemeanor, or
• felony.

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?
  • 2.1. No intent
  • 2.2. Consent
  • 2.3. No electronic device
• 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?
  • 7.1. Wiretapping – PC 631
  • 7.2. Peeking while loitering – PC 647i
  • 7.3. Criminal invasion of privacy – PC 647j

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 you of this offense:

1. you intentionally eavesdropped on, or recorded, someone else’s in-person conversation or telephone conversation,
2. you did so by using an electronic device,
3. the conversation was one that would be considered confidential, and
4. you 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:

• microphones,
• telegraphs,
• 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?

You can raise a legal defense to challenge an eavesdropping charge.

Three common defenses are that there was:

1. no intent to eavesdrop,
2. consent, and/or
3. no electronic device.

2.1. No intent

You are guilty under this statute only if you intended to eavesdrop. This is a legal defense if you did not act with intent. Perhaps, for example, you overheard a private conversation on accident.

2.2. Consent

California is a two-party consent state. This means it is a defense for 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

You are guilty only if you eavesdropped using an electronic device. Therefore, it is always a defense for to show that:

• while you may have listened in on a private conversation,
• you 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
• your criminal history.

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

If you are convicted of this crime, you are entitled to an expungement provided that:

1. you successfully complete probation, or
2. you complete a jail term (whichever is relevant).

Under Penal Code 1203.4, an expungement releases you from all:

• penalties, and
• disabilities

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:

1. police can record private conversations, and
2. these recordings can be admitted in court as evidence.

You can also legally record a confidential communication if:

1. you are one of the parties to the conversation, and
2. you are 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 (for example, murder, under Penal Code 187 PC).⁸

If all of these conditions are met, then:

• you 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 are no laws that prohibit you from:

• using video surveillance cameras,
• around your property,
• for the purposes of security.

But these cameras cannot record something in which a person has a reasonable expectation of privacy. 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 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,
• their private parts would not be visible or photographed by the public.¹¹

6. Are there 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 them.¹²

If the “victim” claims that they suffered economic damages as a result of the eavesdropping, they may sue for:

• up to three times the amount of damages they suffered, or
• $5,000, whichever is greater.¹³

If the plaintiff did not suffer any economic damages at all, they can still sue for up to $5,000.¹⁴

7. Are there related offenses?

There are three crimes related to eavesdropping. These are:

1. wiretapping – PC 631
2. peeking while loitering – PC 647i, and
3. criminal invasion of privacy – PC 647j.

7.1. Wiretapping – PC 631

Per Penal Code 631 PC, it is a crime to:

1. “tap” directly into someone else’s phone line, and
2. 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:

1. peek into an inhabited building, and
2. 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:

1. using a device to invade a person’s privacy,
2. secretly photographing a person’s body for the purpose of sexual gratification, or
3. 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.

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