Penal Code 632 PC - California "Eavesdropping" Laws


Penal Code 632 PC
is the California statute that defines the crime of "eavesdropping." This section states that

"Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records 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), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment."

The right to privacy is an important idea in California law. The very first section of the California state constitution lists "privacy" as one of the "inalienable rights" that all citizens of the state enjoy.1 And in 1967, the California Legislature passed the so-called "Invasion of Privacy Act," which uses criminal penalties-the toughest tools government has available-to deter private citizens from invading each other's privacy.2

One of the ways California tries to protect its citizens' privacy is by making certain kinds of eavesdropping a crime. These laws are found in Penal Code 632 PC.3 It's not a crime just to listen in on a private conversation between people who may not know you can hear them...but it is a crime to use an electronic device to overhear or record a private conversation.4

Unfortunately,  the law making it a crime for ordinary citizens to eavesdrop on private conversations doesn't do much to restrict the ability of police and other law enforcement to eavesdrop.5 This is a bit ironic, since most people probably feel that the biggest threat to their privacy comes from the government...not from their fellow citizens.

In this article, our California criminal defense attorneys6 explain:

1. The legal definition of eavesdropping in California (Penal Code 632 PC)

1.1. Elements of the crime of eavesdropping

Let's say you are in a bathroom stall at work. Two colleagues come in and, assuming no one else is in the bathroom, talk openly about their plans to embezzle money from the company. You could alert them to your presence. But instead you remain quiet because you want to hear the rest of the conversation.

man eavesdropping through door
Penal Code 632 PC, California's criminal law against eavesdropping, criminalizes only a very particular kind of eavesdropping

This may (or may not) be immoral, but the fact it's not illegal. Penal Code 632 PC, California's criminal law against eavesdropping, criminalizes only a very particular kind of eavesdropping. In order to be a crime, eavesdropping needs to have the following characteristics:

  1. It needs to be intentional-not accidental.7
  2. It needs to take place without the permission of one of the parties to the overheard conversation. If one party consents and the other doesn't, it is still eavesdropping.8
  3. The conversation needs to be confidential.9 This means that it needs to take place in circumstances that reasonably indicate that at least one party to the conversation intends for no one else to overhear it.10
  4. Most importantly, eavesdropping needs to involve the use of an electronic amplifying or recording device, either to overhear the conversation in the first place or to record it.11
Example: John suspects that two coworkers of his, Larry and Marie, both of whom are married, might be having an affair. Marie is John's supervisor, and he thinks that it might be helpful to have more solid proof of the affair. He plans to let Marie know that he knows. John hopes that this might cause her to treat him better at work because she'll be afraid that he'll tell her husband.

So John places a hidden microphone in Marie's office that connects to a listening device on his own work computer. John is able to overhear all Marie's conversations, including some with Larry that make it clear that they are having an affair.

This is illegal eavesdropping. John is using an electronic amplifying device to hear the conversations. And behind the closed door of Marie's office, Larry and Marie would reasonably expect that their conversations to be private.


Example: Bruce is a tech company executive attending an industry conference. It turns out that an executive from a rival company is staying in the hotel room right next to Bruce's. Bruce accidentally discovers that he can hear everything that goes on in the other executive's room when he stands in his closet.

The other executive spends a lot of time in his room on the phone discussing a secret new product his company is developing. Bruce overhears enough to know that this is information his own company would love to have. So he stands in the closet and uses his laptop computer to make an audio recording of the conversations in the next room.

This is also illegal wiretapping, since Bruce used an electronic device to record the conversation, and naturally the other executive would have expected the conversations in his hotel room to be private.

Intercepting cell phone or cordless phone calls

a wire being tapped
California also makes it a crime to intercept calls on cellular phones and cordless phones.

These days many phone calls don't take place over traditional landline phones. So California also makes it a crime to intercept calls on cellular phones and cordless phones.12

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 ordinary eavesdropping.13

1.2. Penalties

The California crime of eavesdropping is a wobbler .14 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 the prosecutor decides to charge the crime of eavesdropping 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.15

But if it is charged as a felony, then eavesdropping is punishable by up to sixteen (16) months, two (2) years, or three (3) years in state prison, a two thousand five hundred dollar ($2,500) fine, or both.16

Also, if you have previously been convicted of eavesdropping or of certain other crimes associated with invasion of privacy (including wiretapping, intercepting a cell phone call, and intercepting a call on a cordless phone), the maximum fine rises to ten thousand dollars ($10,000).17

1.3. No use as evidence

Let's say you use an electronic device to eavesdrop on someone in order to get evidence that you can use against them in a civil lawsuit (like a business contract dispute or a divorce). This may seem like a very reasonable way of fighting for your side in the court case. Unfortunately, though, not only might you face criminal charges for the eavesdropping...but any evidence you obtain that way will NOT be allowed in the court proceeding.18

Example: Paula is in the middle of a contentious divorce from her husband Lou, and both of them are trying to gain custody of their young daughter, Madison. For the time being, Madison spends her weeks with Paula and her weekends with Lou.

One weekend, Paula plants a digital voice recorder in the backpack Madison will take with her to Lou's house. The recorder is recording all weekend and reveals that Lou is verbally abusive to Madison and leaves her alone in the house several times when he goes to run errands.

Paula would like to use these recordings as evidence in the custody suit...but because this is illegal eavesdropping, she cannot do so.

1.4. Civil damages

gavel and scale of justice
Penal Code 637.2 PC, specifically provides that eavesdropping victims can bring a civil suit for damages against someone who eavesdropped on them

If you are accused of the crime of eavesdropping, you may also find yourself facing a lawsuit by the person or people who are the supposed "victims" of the eavesdropping (that is, people whose calls were overheard or recorded without their permission). California criminal law, Penal Code 637.2 PC, specifically provides that eavesdropping victims can bring a civil suit for damages against someone who eavesdropped on them19.

If the person suing you claims that they suffered economic damages as a result of the eavesdropping, 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.20 And even if they didn't suffer any economic damages at all, they can still sue you for up to five thousand dollars ($5,000.)21

1.5. Related offenses: wiretapping

The California crime of illegal wiretapping (Penal Code 631) is closely related to the crime of eavesdropping.22

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 phone conversations by using a machine to "tap" into the phone line over which they take place. Eavesdropping, on the other hand, is the act of listening in on conversations (including those that don't take place over the phone) with the aid of an electronic device that is NOT a wiretap of a phone line.23

Example: Bob is in the middle of a divorce from his wife. With the help of a friend who is a private investigator, Bob taps his own phone; he records phone conversations with his wife in order to use them against her in the divorce proceeding. 

Bob is guilty of the crime of wiretapping...because his plan was to use the tap to record conversations with his wife without her permission.24 He may also be charged with eavesdropping, because he used a recording device to record conversations with his wife that she likely assumed were confidential.

Like eavesdropping, wiretapping is a wobbler.25 The maximum misdemeanor penalty is up to one (1) year in county jail, a fine, or both. The maximum felony penalty is up to sixteen (16) months, two (2) years, or three (3) years in jail, a fine, or both.26

2. Eavesdropping by law enforcement

surprised man listening through door with coffee cup by ear
private citizens can get around the law against eavesdropping if they are recording conversations in order to gather evidence about certain kinds of crimes

According to West Covina criminal defense attorney John Murray:27

"People who are suspected of committing crimes...but have not yet been tried and found guilty...presumably enjoy the same right to privacy as anyone else in the state of California. So you may think that the restrictions on eavesdropping that apply to private citizens also apply to police. Unfortunately, nothing could be farther from the truth."

When the California legislature passed the Invasion of Privacy Act in 1964, they specifically made an exception to the law against eavesdropping for law enforcement officers. It remained legal for police to engage in any kind of eavesdropping that it was legal for them to do before the law was passed.28 Also, the legislature made it clear that any evidence police obtained this way would still be admissible in court.29

Not only that...but private citizens can get around the law against eavesdropping if they are recording conversations in order to gather evidence about certain kinds of crimes. This exception applies if:

    1. The person doing the recording is one of the parties to the conversation, and
    2. That person is recording the conversation in order to gather evidence that they reasonably believe is related to the commission, by the other party to the conversation, of one of the following crimes:
a. Extortion,

b. Kidnapping,

c. Bribery,

d. Any felony involving violence against another person (such as murder or rape), or

e. Annoying phone calls (Penal Code 653m). (This less serious crime (Penal Code 653m) may not seem to fit in with the rest-but in fact it makes some sense to allow people who think they are receiving annoying telephone calls to record those calls for evidence.)30

If a private citizen records a call legally under this law, that recording may then be admitted as evidence in a prosecution for one of these crimes.31

What this means is that police -- and in some cases private citizens -- are given a great deal of freedom to use eavesdropping in order to help solve a crime, as the following examples show:

Example: Dan hires Robert to murder his girlfriend's ex-husband. But Robert quickly gets cold feet. He is hoping he can find a way to get the money Dan has promised to pay him for the murder...without actually committing the murder. He begins tape-recording his phone conversations with Dan, hoping that this will help make that happen.

Later, Robert decides to go to the police. With the police's help, he records more calls and comes up with enough incriminating evidence to lead to Dan's arrest for attempted murder.

These recordings are legal, and they are also admissible in court...because of the law allowing a party to a conversation to record it to obtain evidence about a murder...AND because recordings of conversations under police supervision were permissible before the Invasion of Privacy Act was passed.32


Example: Frank owns a radio scanner. One day it picks up calls made from Gilbert's cordless phone. Gilbert appears to be discussing a planned drug sale. So Frank contacts the police, who tell him to continue monitoring Gilbert's calls and to start recording them. Eventually the police take over and start recording Gilbert's cordless phone calls themselves.

This is perfectly legal, and the recorded calls are admissible in evidence when Gilbert is charged with selling a controlled substance (Health & Saftey Code 11352). Police were allowed to use a radio scanner to intercept cordless phone calls without a warrant prior to the Invasion of Privacy Act...so there's no California law preventing them from doing so now.33

Court order required to wiretap or intercept phone calls

However, this does NOT mean that it is legal for the police to bug your phone whenever they feel like it and record all your calls. It's true that police can use recordings of your phone conversations if they were able to obtain them because the person you were speaking to decided to record them...or because they could be heard over a radio scanner. But if the police want to place a wiretap on your phone or intercept your cell phone calls, they will need to get a court order.34

woman eavesdropping through door
if the police want to place a wiretap on your phone or intercept your cell phone calls, they will need to get a court order

To get this court order, police have to be investigating one of the following crimes:

    • Serious drug crimes (manufacturing of narcotics, possession for sale of drugs per Health & Safety Code 11351 HS, or selling or transportation) involving more than three pounds or 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.35

Also, the police need to be able to convince the judge that "normal investigative procedures" that don't involve the use of a wiretap or the interception of phone calls are not going to work-either because they were tried and failed, or because they are unlikely to succeed, or because they will probably be too dangerous.36

Eavesdropping when someone is seeking a restraining order

There is one other important situation in which someone else may legally record a conversation with you without your permission. It involves situations where someone is seeking a restraining or protective order against you for under California domestic violence laws. They can request that the order contains a specific provision allowing them to record any communication you initiate with them that violates the restraining or protective order per Penal Code 273.6.37

It would then not be a crime for them to record the conversations, without your permission, and the recordings would be admissible in court.38

Example: Alan and his girlfriend Molly get into a serious fight that leads to Molly pushing and scratching Alan, and Alan pushing and hitting Molly. Molly then applies for and receives a restraining order against Alan, which prohibits him from contacting her by phone and allows her to record any phone conversations he initiates.

Alan is surprised when he receives the restraining order and calls Molly immediately. She may record the phone conversation and use it as evidence that he has violated the violated the restraining
order.

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If you or loved one is charged with Penal Code 632 PC eavesdropping and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California. If your case is in Nevada, please see our article on Nevada's laws on invasion of privacy by eavesdropping and unauthorized listening


Legal References:

  1. Cal. Const., Art. I, section 1. ("All people are by nature free and independent and have inalienable rights.  Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.")

  2. Penal Code 630 PC - Legislative finding and intent. ("The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society. The Legislature by this chapter intends to protect the right of privacy of the people of this state.")

  3. Penal Code 632 PC - Eavesdropping on or recording confidential communications. ("(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records 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), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.")

  4. Same.

  5. Penal Code 630 PC - Legislative finding and intent. 

  6. Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

  7. Penal Code 632 PC Same.

  8. Same.

  9. Same. ("(c) The term 'confidential communication' includes 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.")

  10. Same.

  11. Penal Code 632.5 PC

  12. Same.

  13. Penal Code 632 

  14. Same.

  15. Same. See also Penal Code 18 PC 

  16. Penal Code 632 PC - Eavesdropping on or recording confidential communications.

  17. Penal Code 632 PC - 

  18. Penal Code 637.2 PC 

  19. Same.

  20. Same.

  21. Penal Code 631 PC - Wiretapping. 

  22. People v. Ratekin, (1989) 212 Cal.App.3d 1165, 1168. 

  23. Based on People v. Snowdy (1965) 237 Cal.App.2d 677, 681. 

  24. Penal Code 631 PC - Wiretapping.

  25. Same.

  26. West Covina criminal defense attorney John Murray handles the gamut of felony and misdemeanor cases and represents clients at courthouses throughout the Los Angeles County and San Bernardino County court systems.

  27. Penal Code 633 PC

  28. Same.

  29. Penal Code 633.5 - Recording communications 

  30. Same.

  31. Based on People v. Ayers, (1975) 51 Cal.App.3d 370, 376-77. 

  32. Based on People v. Chavez, (1996) 44 Cal.App.4th 1144, 1157. 

  33. Penal Code 629.52 PC - Order authorizing interception; required findings; specified offenses.

  34. Same. 

  35. Same. ("(d) Normal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous.")

  36. Penal Code 633.6 PC - Domestic violence restraining order; permission to record prohibited communications by perpetrator. 

  37. Same.

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