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California 2024 Recording Laws: Two-Party Consent Needed?

In California, it is generally illegal to record a private conversation without the consent of all parties involved. This is known as California’s two-party consent law. However, there are exceptions to this rule, such as when the recording is made in a public setting where there is no reasonable expectation of privacy, or when the recording is made by law enforcement officers in the course of their official duties.
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C.L. Mike Schmidt Published by C.L. Mike Schmidt

What is Eavesdropping Under Penal Code 632?

According to SCLG, Penal Code 632 in California outlines the legal repercussions for eavesdropping, defining it as a criminal offense [1].

To qualify as a violation under this law, certain criteria must be met:

  • The actions must be deliberate, not accidental
  • The eavesdropping occurs without the consent of the individuals engaged in conversation
  • The conversation is of a confidential nature
  • The use of an electronic recording or amplifying device is involved, either to intercept the conversation or record it

California criminal law says that a conversation is confidential when it takes place in circumstances that reasonably indicate that at least one party to the conversation intends for no one else to overhear it. Whether or not a conversation is confidential is a question decided by the facts of a given case – SCLG

Instances that could constitute eavesdropping include:

  • Sally covertly places a recording device in her boss’s office to gather incriminating information
  • Jose, a college student, surreptitiously records a private discussion between two professors using his smartphone
  • Martel enters his ex-girlfriend’s residence without permission and installs a recording device in her bedroom to eavesdrop on her conversations

These examples illustrate scenarios that align with the parameters set forth by Penal Code 632 in California.

California law also states that “one party to a confidential communication is not prohibited 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, including but not limited to, human trafficking, as defined in Section 236.1, or a violation of Section 653m, or domestic violence as defined in Section 13700 of the Penal Code.

Other exceptions to the “two-party consent” law may include the following:

Public Conversations
If the conversation is taking place in a public space where individuals do not have a reasonable expectation of privacy, it may be admissible to record without consent. However, it’s important to exercise caution and ensure that no other laws or regulations are being violated in the process.

Law Enforcement
Law enforcement agencies in California have specific guidelines and legal authority to conduct electronic surveillance, including wiretapping and recording conversations, as part of their investigations. These actions are generally governed by specific legal procedures and requirements.

Personal Safety
California law allows individuals to record conversations without consent if they reasonably believe that it is necessary to protect their personal safety or the safety of others. Rather than presenting a criminal defense, this exception is intended to address situations where recording can provide evidence showing threats of — and therefore possibly proactively prevent — extortion, kidnapping, bribery, and any felony involving violence against the person, including, but not limited to, human trafficking.

Protection of Rights and Evidence
Recording conversations without consent may also be admissible when it is done to protect one’s rights or to gather evidence in certain circumstances. For instance, in the already mentioned cases of extortion, kidnapping, bribery, and felonies involving violence against the person, including, but not limited to, human trafficking, recording someone without their knowledge or consent may be seen as justifiable in order to provide evidence.

Journalistic Purposes
Even with two-party consent, California recognizes that journalists may have certain privileges and protections when it comes to recording conversations in the course of their work. However, journalists still need to adhere to ethical standards and balance the public interest served against the potential intrusion into individuals’ privacy.

Consent Given
Of course, if all parties involved in the conversation are aware and have given their consent to be recorded, then recording without further consent is permissible. With consent, the recordings generally can be used as evidence in criminal cases.

Can I Sue Someone for Illegally Recording Me in California?

If you discover that someone has recorded you without your consent, you might have grounds for legal action under specific circumstances. In California, Penal Code 632 prohibits the recording of confidential communications without the consent of all parties involved.

To establish guilt in a case involving the unauthorized recording of a conversation in California, several key elements must be proven:

Confidential Communication: The conversation recorded must be deemed confidential, indicating that the parties involved had a reasonable expectation of privacy. This encompasses private discussions, phone calls, or any communication where participants reasonably believe it to be private and not intended for recording or eavesdropping.

Lack of Consent: The recording must occur without the consent of all parties involved. California law mandates the consent of every participant in a confidential communication for lawful recording. If any individual is unaware of being recorded or hasn’t given consent, the recording could be deemed illegal.

Intent: The individual making the recording must have the intent to eavesdrop on or intercept the communication. Accidental recordings or those lacking the intent to breach privacy might not meet the criteria under California recording laws.

Use of Electronic Device: The accused must have employed an electronic recording device to clandestinely capture the conversation in California. Electronic devices encompass a range of equipment such as telephones, computers, video recording devices, and microphones.

If a bank, lender, collection agency, or debt collection attorney has recorded you without your consent in a private telephone call, you may be considered the “injured party” under the law. As the injured party, you have the right to take legal action against the person who unlawfully recorded you.

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If you or a loved one was involved with these matters, you should contact our law firm immediately for a free case evaluation. You may be entitled to a settlement by filing a suit and we can help.

References:

1. https://www.shouselaw.com/ca/blog/criminal-defense/is-it-illegal-to-record-someone-without-consent-in-california/

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