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Is it illegal to record someone without consent in California?

Posted by Neil Shouse | Jul 01, 2019 | 0 Comments

Microphone

It is illegal to record a confidential conversation, including a private conversation or telephone call, without consent in California. A violation of this rule is the crime of eavesdropping, per Penal Code 632 PC.

Note that while PC 632 makes it a crime to record a private conversation, a party can legally record a communication made in a public gathering. The law also does not apply to the police and some private citizens when recording a conversation to gather evidence of an offense.

A violation of Penal Code 632 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony at the prosecutor's discretion.

If the prosecutor decides to charge the crime as a misdemeanor, then the maximum penalties are:

  • imprisonment in the county jail for up to one year, and/or
  • a fine of up to $2,500.

If charged as a felony, then eavesdropping is punishable by:

  • up to sixteen months, two years, or three years in state prison, and/or
  • a fine of up to $2,500.

What is eavesdropping under Penal Code 632?

Penal Code 632 is the California statute that makes eavesdropping a crime. In order for an act to be a crime under this statute, then the following must be true:

  1. the acts need to be intentional and not accidental,
  2. it needs to take place without the consent of the person speaking,
  3. the conversation needs to be confidential,
  4. the act 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.

Note that California criminal law says that a conversation is “confidential” when it takes place in circumstances that reasonably indicate that at least one party to the conversation intends for no one else to overhear it. Whether or not a conversation is confidential is a question decided by the facts of a given case.

Examples of acts that would be considered eavesdropping are:

  • Sally wants to get dirt on her boss, so she places a recording device in his office to listen in on his private talks.
  • Jose is in college and sneaks into a meeting between two of his professors and records them talking with his phone.
  • Martel sneaks into his ex-girlfriend's apartment and puts a recording device in her bedroom to listen in on her private conversations.

Does Penal Code 632 apply to public conversations?

It depends on the facts of a case as to whether the statute applies to a “public” conversation.

Please recall that a private or confidential conversation is one where it takes place in circumstances that reasonably indicate that at least one party to the conversation intends for no one else to overhear it. Further, the determination as to whether a conversation is indeed private is a question of fact.

This means PC 632 does not apply to those “public” conversations in which the facts show that, under the circumstances, it was not reasonable that a party to the conversation would intend for no one to hear it.

According to Penal Code 632c, the statute also does not apply to:

“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.”

Does PC 632 apply to the police and recordings used to gather evidence?

Penal Code 632 does not apply to eavesdropping by law enforcement personnel. Police can legally “listen in” on private conversations without the consent of the parties. In addition, any evidence police obtain this way is admissible in court.

Note too that private citizens can get around the law against eavesdropping if they record a conversation 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, or

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

What are the penalties for eavesdropping?

A violation of Penal Code 632 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony at the prosecutor's discretion.

If the prosecutor decides to charge the crime as a misdemeanor, then the maximum penalties are:

  • imprisonment in the county jail for up to one year, and/or
  • a fine of up to $2,500.

If charged as a felony, then eavesdropping is punishable by:

  • up to sixteen months, two years, or three years in state prison, and/or
  • a fine of up to $2,500.

Also, if a defendant was previously 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).

Is eavesdropping the same as wiretapping?

The California crime of illegal wiretapping, per Penal Code 631, is closely related to eavesdropping – but the two offenses are different.

The main 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.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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