California Eavesdropping / Wiretapping Law
California's eavesdropping law is a "two-party consent" rule.
Applies To Confidential CommunicationsCalifornia's eavesdropping / wiretapping law is a "two-party consent" rule. The law applies to "confidential communications" -- i.e., conversations in which one of the parties has an objectively reasonable expectation to privacy such that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). The California appellate courts have ruled that this statute applies to the use of hidden video cameras to record conversations as well. See California v. Gibbons, 215 Cal. App. 3d 1204 (Cal Ct. App. 1989). Thus one will hear the common phrase, "this phone call may be monitored for quality assurance."
If there is a recording of someone without their knowledge in a public or semi-public place like a street or restaurant, the person being recorded may or may not have "an objectively reasonable expectation to privacy such that no one is listening in or overhearing the conversation," and the reasonableness of the expectation of privacy depends on particular factual circumstances. Therefore, one cannot necessarily assume that they are in the clear simply because they are in a public place.
Criminal ViolationIt is a crime in California to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. See Cal. Penal Code ? 632. The statute of limitations for ? 632 claims is one year and begins accruing at the moment a call is secretly recorded.
Civil ViolationIn addition to being subject to criminal prosecution, violating the California wiretapping law can expose one to a civil lawsuit for damages by an injured party. See Cal. Penal Code ? 637.2. A civil cause of action exists in California law for individuals who have been recorded without their consent: the common law tort of intrusion. The tort of intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person, considering, among other factors, the motive of the alleged intruder. To prevail on this cause of action, the plaintiff must show that the defendant "penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about" the plaintiff. Additionally, the plaintiff must have had an objectively reasonable expectation of seclusion or solitude in the place or conversation. However, a complete expectation of privacy is not necessary to state a cause of action for intrusion
Exemption633.5. Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m. Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders any evidence so obtained inadmissible in a prosecution for extortion, kidnapping, bribery, any felony involving violence against the person, a violation of Section 653m, or any crime in connection therewith.
PerjuryIn addition to the criminal and civil exposure above, there are also special rules with respect to using illegal recordings as evidence at trial. Generally, under California Penal Code ? 632(d), an illegally recorded conversation is inadmissible in any court proceeding. However, California courts have carved out exceptions to this blanket exclusion in both civil and criminal actions.
In Frio v. Superior Court (1988) 203 Cal.App.3d 1480, the Court of Appeal held that any testifying witness cannot use the exclusionary provisions of Penal Code ?632 as a shield for perjury. "The repugnance of an opportunity for a witness who was recorded to lie in this situation is akin to the circumstance of a criminal defendant who testifies at variance with an earlier statement ruled inadmissible because of a violation of Miranda.
Similarly, the evidentiary sanction of section 632, subdivision (d), cannot be construed so as to confer upon a testifying witness the right to commit perjury. The truth-finding function of trial, already strained by exclusion of the writings themselves, should not be burdened further by the presentation of evidence through witnesses who may lie with impunity." Id., at 1497-1498.
The Court of Appeals in the matter of People v. Crow, (1994) 28 Cal.App.4th 440 relied on Frio to support its holding that unlawful tainted evidence and communication could be used against defendant for impeachment purposes: "Evidence of confidential conversations obtained by eavesdropping or recording in violation of [Penal Code] section 632 is generally inadmissible in any proceeding (?632, subd. (d)), but can be used to impeach inconsistent testimony by those seeking to exclude the evidence. [ Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1497...]" Id. at 452.
In a lawsuit, and based on the holdings in Frio and Crow, recordings obtained in violation of Penal Code ? 631 & 632 can be used for impeachment purposes in trial. The rationale behind this is that the recording party should not be able to use Penal Code ? 632(d) as a shield for perjury and lie with impunity about the contents of the recording because he or she knows the recording cannot be admitted into evidence. In addition, it appears that a party can use an illegal recording, transcription or notes to refresh his or her memory of the contents of the conversation. It is well-established that evidence that is otherwise inadmissible can be used to refresh present recollection. However, the safest route is to avoid recording conversations without the other party's express consent.