California Law - Regarding Non-Consensual Recorded Conversations

California's recording law is a "two-party consent" law. California makes it a crime 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.

1. Cal. Penal Code

   The statute applies to "confidential communications" -- i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). A California appellate court has 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). In addition to subjecting you to criminal prosecution, violating the California wiretapping law can expose you to a civil lawsuit for damages by an injured party. See Cal. Penal Code § 637.2.

2. Recording in Public Places

   If you are recording someone without their knowledge in a public or semi-public place, including but not limited to a street or retail store, the person whom you're recording may or may not have "an objectively reasonable expectation that no one is listening in or overhearing the conversation," and the reasonableness of the expectation would depend on the particular factual circumstances. Therefore, you cannot necessarily assume that you are in the clear simply because you are in a public place; c) yes for impeachment purposes, the key term is impeachment and there are several legal elements involved before it can be used, if it can be used at all.

3. Elements of a Claim

   The elements of a claim for violation of CIPA are: (1) an intentional action, (2) of recording or monitoring of a conversation in which a party would normally have a reasonable expectation it would not be so recorded and monitored, (3) without consent, and (4) where the party suffered injury – but not necessarily damage. Penal Code §§ 632, 637.2.

4. Reasonable Expectation of Privacy

   Factors relevant to determining whether an objectively reasonable expectation of privacy exists (that is, that no one is secretly recording or listening to a phone conversation) include, but are not limited to: (1) who initiated the call, (2) the purpose and duration of the call, (3) the customer’s prior relationships, experiences and communications, (4) whether confidential information was conveyed, and, or course (5) whether an admonition/disclosure/warning was given during the call at the outset, or otherwise. See Kight, supra, 200 Cal.App.4th at 1397 (citing Kearney); see also Flanagan, supra, 27 Cal.4th at 776–77 (remanding for consideration whether son had objectively reasonable expectation that his private telephone conversations with his father were not being recorded by the father's wife); Nissan Motor Co., Ltd. v. Nissan Computer Corp. (C.D.Cal.2002) 180 F.Supp.2d 1089, 1093–94 (conversations between counsel concerning litigation related matters were deemed confidential communications within the meaning of Section 632); People v. Pedersen (1978) 86 Cal.App.3d 987, 994 (“The nature of the meeting and the manner in which it was carried out are such that the court could reasonably conclude that it was no different than other business meetings of the parties that were not confidential.”).

5. Statute of Limitations

   “The statute of limitations in which to commence an action for invasion of privacy is one year.” Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 880. The statute of limitations on a cause of action under Penal Code § 632 commences when the plaintiff knew, or should have known, of the defendant’s unlawful acts. Montalti v. Catanzariti (1987) 191 Cal.App.3d 96, 97-98.

6. Penalty for Cal. Penal Code 632

   A fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”

7. Exceptions

   Cal. Penal Code 632 does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees, or agents thereof, if the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct, or operation of the services and facilities of the public utility, (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.

8. Can Be Used in Court for Perjury

   In 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.

9. Best Advice

   1. Never to tape record a conversation without the knowledge of the other party (and make certain that authorization is given during the taped conversation).
   
   2. When speaking to someone on the phone never make any admission to a criminal offense since you never know if the person on the other end of the phone has legal permission from law enforcement to tape record the conversation.