Is it Legal to Record Conversations Between Parties?
Generally, under California law you are not allowed to record confidential communications between two or more parties.
Penal Code 632
Under Penal Code Section 632, authorized under the California Invasion of Privacy Act, makes it illegal for an individual to record a “confidential communication” whether the communication is carried among one of the parties or recorded on a telephone.
California Penal Code section 632.7 enforces criminal liability upon persons who record confidential communications. While Penal Code section 637.2, enforces civil liability upon persons who intercept or receive a communication involving a cellular or cordless telephone and record the communication without consent.
Under Penal Code § 632(c), defines “confidential communication” as any communication disclosed between two persons in a private environment. This excludes communication exchanged between two people in a public environment because the conversation could be overheard or recorded by anyone within the vicinity of that area.
What Are the Penalties for PC 632?
- Fine of up to $2,500 and/or
- Imprisonment for up to a year.
What Are Exceptions to Recording Confidential Communication?
- In California, Police officer generally may record conversation without the knowledge of another during criminal investigation
- In California, informants using a hidden recording device as part of a criminal investigation are generally permitted to carry out that act
- See Penal Code Section 632.7(b)
Recording Confidential Communication Under California Penal Code Section 632.7 (b)
(b) This section shall not apply to any of the following:
(1) Any public utility engaged in the business of providing communications services and facilities, or to the officers, employees, or agents thereof, where the acts otherwise prohibited are for the purpose of construction, maintenance, conduct, or operation of the services and facilities of the public utility.
(2) The use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of the public utility.
(3) Any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.
(c) As used in this section, each of the following terms have the following meaning:
(1) “Cellular radio telephone” means a wireless telephone authorized by the Federal Communications Commission to operate in the frequency bandwidth reserved for cellular radio telephones.
(2) “Cordless telephone” means a two-way, low power communication system consisting of two parts, a “base” unit which connects to the public switched telephone network and a handset or “remote” unit, that are connected by a radio link and authorized by the Federal Communications Commission to operate in the frequency bandwidths reserved for cordless telephones.
(3) “Communication” includes, but is not limited to, communications transmitted by voice, data, or image, including facsimile.
Cases Involving Recording Confidential Communications
Pursuant to Roberts v. Wyndham defendants’ motion to dismiss plaintiffs’ claims brought under Cal. Penal Code § 632.7 was denied because plaintiffs suspected a communication involving at least one cellular phone, which satisfied the California Supreme Court’s interpretation of § 632.7.
The appeal of section 632.7 to plaintiffs is that it may not require the subject communication be confidential, unlike section 632. The question is raised, though, if section 632.7 even applies to the parties to a cellular or cordless telephone call.
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