When it comes to recording telephone calls and other private conversations, California is a “two-party consent” state. Under the California Invasion of Privacy Act and in particular Penal Code section 632, all parties to the conversation (even if there are more than two) must give their permission or else recording it will be illegal. This applies to eavesdropping, as well.
The law applies to any “confidential communication,” whether carried on in person or by telephone, or some other device. A communication is confidential when circumstances reasonably reflect, “that any party to the communication desires it to be confined to the parties only.”
In contrast, communications are not confidential for the purposes of section 632 if they are made under any circumstances in which the communicating parties might reasonably expect it could be overheard or recorded. The law also specifically excludes communications “made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public.”
Section 632.7 contains an important distinction from Section 632. Under Section 632.7, it is illegal to record conversations where one or both parties to the call are on a cellular or cordless telephone. More importantly, Section 632.7 does not have a confidentiality requirement; it is prohibited to record or eavesdrop on any cellular or cordless telephone call without providing a warning.
Sections 632 and 632.7 are two of many state and federal laws that protect the privacy of Californians. California has enacted laws to protect residents and consumers in contexts including electronics (smart TVs), automobiles (license plate information; “black boxes”), radio frequency identification (RFID) data; and many others.
What are the consequences of recording a communication without the consent of all parties?
Each violation of Penal Code section 632 or 632.7 is punishable by up to a $2,500 fine and up to one year of custody. Repeat offenses after a previous conviction are punishable by fines up to $10,000 per violation and up to a one year of imprisonment.
Moreover, under Penal Code section 637.2, a person who is injured by a violation of the California Right to Privacy Act can sue the violator in civil court for triple the amount of damages actually sustained or $5,000 per violation, whichever is greater. And a communication that’s illegally recorded cannot be used as evidence in court or an administrative proceeding.
If I am in California, can someone located in a “one-party” state record a conversation with me without my knowledge?
Sections 632 and 632.7 prohibit persons outside of California from recording conversations with California residents without their knowledge or consent. This issue was resolved by the California Supreme Court in 2006 in Kearney v. Salomon Smith Barney, Inc. In Kearney, the Court determined that California’s more restrictive law took precedence over that of Georgia, a one-party state, because otherwise California’s interest in protecting its residents’ privacy would be impaired more than any interests of Georgia.
“This call may be recorded for quality assurance purposes.”
Kearney also established that even if you do not affirmatively consent to having your conversation recorded, “[i]f a business informs a client or customer at the outset of a telephone call that the call is being recorded, the recording would not violate the applicable California statute.” Similarly, rules issued by the California Public Utilities Commission indicate that playing a distinct audible tone every 12-18 seconds throughout the entire call is sufficient notice to all parties that the call is being recorded.
Can my phone calls be recorded at work?
Your employer is a “person” under Sections 632 and 632.7 and therefore subject to the law’s restrictions and can record calls you make on company telephones, so long as you have given your consent (and all other parties on the call have consented). You may have been required to consent to such recording as a condition of employment so if in doubt, check your employment agreement and employee handbook.
If your employer has made consent to having calls recorded as a condition of employment, then it is reasonable to infer, that any internal calls could be recorded without further notice to you. But calls made to or from people outside the company cannot be recorded without the consent of the outside person.
One notable exception contained in Labor Code section 435 is that an employer may not cause an audio or video recording to be made of an employee in a restroom, locker room, or designated changing room without a court order. An employer cannot use a recording made in violation of section 435 for any purpose.
So, what is the lesson? If you want to record the opposing party, counsel, or anybody, knowledge of the recording and consent must be provided. Otherwise, there are criminal and civil penalties. If you have any further inquiries, please email me at [email protected] or call my office at 310-601-7144.
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