Software and apps have made it very easy to record phone calls that you make or receive whether on a landline, a cell phone, or through VOIP services like Skype. But unless you receive the consent of the person or people on the other end of the line, recording a phone call you are on is against the law in California.
Even though “eavesdropping” conjures up images of secretly listening to other people's conversations, California's “eavesdropping” law also applies to the recording of phone calls by a participant in the conversation.
Recording a “Confidential Communication” Requires the Consent of All Parties
California Penal Code Section 632 makes it a crime to “intentionally and without the consent of all parties to a confidential communication” use a recording device to record a confidential conversation carried on over the phone or through any other device, such as a laptop computer.
Most private phone calls between two or more parties would constitute a “confidential communication” as defined by Penal Code Section 632(c). Under that section, a "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…”
If someone on the other end of the call was in their home, office, or car during the call, that would more than likely “reasonably indicate” that they wanted the communication to be confined to the folks on the call.
However, the statute makes it clear that calls made or received in the following situations do not constitute “confidential communications”:
- a communication made in a public gathering, or
- a communication made in any legislative, judicial, executive or administrative proceeding open to the public, or
- a communication made in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
People will sometimes secretly record their own phone conversation with someone else, perhaps a spouse or employer, with the hope that the other person says something that can be used against them in a lawsuit or other legal proceeding.
However, any phone call (that constitutes a “confidential communication”) recorded without the consent of all of the other parties is not admissible as evidence in any judicial, administrative, legislative, or other proceeding. (Penal Code Section 632(d)).
Penalties for Recording Phone Calls Without Consent
Recording a phone call in California without the consent of all other participants in violation of Section 632 is punishable by a sentence of up to one year in county jail or California State Prison and/or a fine of up to $2,500. Second and subsequent convictions can result in the same jail or prison term, but the fine could be as much as $10,000.
In addition to criminal penalties, you can also be sued for civil damages by the people recorded without their consent. Penal Code 637.2 specifically provides that they may sue you for up to three times the amount of damages they suffered or $5,000, whichever is greater.
If you are facing criminal charges relating the recording of a phone call in California, please give one of our California criminal defense lawyers a call today to discuss your situation and explore your options.