Eavesdropping – PC § 632

Is it a crime to record telephone calls?

The short answer, according to Certified Criminal Law Specialist Pat Carey, is yes.  This answer, like any legal answer, comes with caveats, loopholes and explanations.

Two Penal Code Sections in California govern eavesdropping, wiretapping, or recording phone calls.

  1. Penal Code Section 631 – Unlawful Wiretapping

This section is a so-called “wobbler,” punishable as felony or a misdemeanor.

Despite the language requiring “use of a device” courts have construed this as liberally as listening in to a conversation when not authorized to do so.  With that said, the code section requires the purpose to be to learn information that would not otherwise be communicated to the person listening.  Therefore, this statute would require the listener or wiretapper to be a third party.  If there are only two parties to the conversation, any recording cannot be a wiretap because clearly the two parties are intending to share information with each other.

  1. Penal Code Section 632 – Eavesdropping

This section is also a wobbler, punishable as felony or a misdemeanor.

This section prohibits the recording of any “confidential communication” without the consent of all parties.  Now, in your context, I think it would be smart to argue, if this were to come up, that the information in the recording is not a “confidential communication” and therefore was not unlawful.

PC 632(c) defines “confidential communication”: 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.

Also, this is a objective inquiry as to what is confidential, not what the parties subjectively believe.

On a motion to dismiss an indictment charging defendant with recording a confidential communication without the consent of a party to the conversation (Pen C § 632), the trial court erred in focusing upon the subjective expectations of the parties in regard to possible recommunication rather than upon the circumstances under which the conversation was conducted in order to determine whether the conversation had been a confidential communication. People v. Wyrick (Cal. App. 3d Dist. Feb. 23, 1978), 77 Cal. App. 3d 903, 144 Cal. Rptr. 38, 1978 Cal. App. LEXIS 1267.

The test of confidentiality is an objective one, but does not depend on a reasonable expectation the contents of the communication will remain confidential to the parties. Rather, a conversation is confidential for purposes of Pen C § 632 if the circumstances objectively indicate that any participant reasonably expects and desires that the conversation itself will not be directly overheard by a nonparticipant or recorded by any person, participant or nonparticipant. While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device. Such secret monitoring denies the speaker an important aspect of privacy of communication-the right to control the nature and extent of the firsthand dissemination of his statements. Shulman v. Group W Productions, Inc. (Cal. June 1, 1998), 18 Cal. 4th 200, 74 Cal. Rptr. 2d 843, 955 P.2d 469, 1998 Cal. LEXIS 3190.

In a prosecution of defendant for embezzlement from his partnership, a tape recording of a conversation between defendant and some general partners was not a confidential communication made inadmissible under Pen C § 632, and the trial court properly admitted it into evidence. Whether a communications is confidential is a preliminary question of fact, and there was substantial evidence to support the trial court’s finding that the recorded conversation was not a confidential communication, where the nature of the meeting and the manner in which it was carried was such that the trial court could reasonably conclude that it was no different than other business meetings of the parties that were not confidential. People v. Pedersen (Cal. App. 4th Dist. Nov. 30, 1978), 86 Cal. App. 3d 987, 150 Cal. Rptr. 577, 1978 Cal. App. LEXIS 2146.

The long and the short of it is: don’t record phone calls without permission.  If you do, however, make sure to contact us for expert legal advice on how to move forward.