California has some of the strictest laws and penalties for the illegal recording of conversations, whether it’s eavesdropping, recording of videos, or photography. In this article, we’ll discuss specific laws that cover your privacy rights relating to recordings and eavesdropping.
Two-Party Consent and PC 632 recording laws
California’s recording law is a two-party consent law, which means it’s illegal to record or eavesdrop on any confidential conversation, such as private conversations and telephone calls, without the consent of all parties involved in the conversation.
Any violation of this law is a crime under the California Penal Code 632 (PC 632), which is enacted by the California Invasion of Privacy Act. This covers not only private conversations but also any form of electronic communications, such as SMS, emails, or other types of exchange. It also covers face-to-face conversations where parties expect privacy within reason.
But what constitutes consent? As a real-world example, if you call a company or an individual and they tell you from the beginning that the call is recorded, continuing the conversation implies consent. In addition, the recording of a phone conversation is allowed under the California Privacy Act if a “beep tone” warning is sounded during the call.
Eavesdropping Defined Under California PC 632
Under California PC 632, eavesdropping is a crime when it meets the following criteria:
- Eavesdropping is deliberate and not accidental
- It occurs without the consent of the party speaking
- It occurs during a confidential conversation
- It involves the use of electronic or recording devices to overhear the communication or record it.
Confidential vs. Public Conversations in California
The California criminal law defines “confidential” conversations like those that occur in situations where at least one party doesn’t intend anyone to overhear their communication. The facts of a given case determine whether a conversation in question is confidential or not.
The same is true for determining whether the conversation is “public.” Note that for a conversation to be confidential, there must be a reasonable indication that one party doesn’t want anyone to overhear the conversation according to the California recording laws.
In other words, the conversation is public if the facts show that it isn’t reasonable for any party to expect no one to overhear it.
Meanwhile, you can record a video of people interacting as long as:
- Your video doesn’t capture and record the audio of their conversation
- The topic of the conversation isn’t obvious or apparent from the video
- The people you’re recording are talking in a public place
Remember that California also prohibits hidden video recordings in public places.
Police Investigations and Gathering of Evidence in conjunction with California recording laws
While the PC 632 makes it a crime to eavesdrop on confidential communications, law enforcement personnel can legally “listen in” on private conversations even without the parties’ consent. On top of that, any evidence they obtain this way is admissible in court.
Private citizens can also be exempted in certain situations if they eavesdrop to obtain evidence about crimes. Specifically, they can get around the law if:
- they’re one of the parties involved in the conversation
- they believe the recording will help them gather evidence to prove that the other party to the conversation has committed any of these crimes: bribery, kidnapping, extortion, or felonies involving violence, such as rape or murder.
Meanwhile, you as a private citizen have the right to record videos of the police or public officials when they’re performing their official duties, especially if those are visible from public places. Here, “public places” can be anywhere that the public can legally access, including public transportation facilities and parks.
Under the Right to Record Act, recording a law enforcement officer doesn’t constitute suspicion for police to detain the person making the recording. It also doesn’t constitute any probable cause for the police to arrest you, meaning recording an officer doesn’t qualify as resisting arrest or obstructing an officer.
When you’re on private property, follow the directions of the officers, but never give up your camera or recorder. They have no legal right to confiscate the devices unless they have strong reasons to believe that they contain evidence of a crime.
Generally, taking photographs of plainly visible things in public spaces is a constitutional right. You can take photographs of federal buildings, transport facilities, and police.
Police officers may not confiscate or demand to view your photographs without a warrant. If you’re arrested, courts may approve the seizure of your camera if the police have a reasonable belief that it contains evidence of a crime by someone other than the officers themselves. Yet, under any circumstances, the police may not delete your photographs.
On the other hand, you may be ordered to stop taking pictures if your activities truly disrupt or interfere with legitimate law enforcement operations. If in public, you can assure the officer that you don’t have the intention to interfere with their operations. You can offer to move further away, or ask them to explain why your activities interrupt their operations.
Moreover, your right to photograph doesn’t trump your responsibility not to break other laws. For instance, if you’re trespassing while taking photographs, you may still be faced with a trespassing charge.
Penalties for Eavesdropping
Eavesdropping and other violations of the PC 632 is a wobbler offense, which means it can be either a misdemeanor or a felony as determined by the prosecutor.
If the violation is charged as a misdemeanor, the maximum penalties are a year of imprisonment in the county jail or a fine of up to $2,500.
On the flip side, if it’s charged as a felony, then it’s punishable by 2–3 years in prison and a fine of up to $2,500.
If the defendant has been previously convicted of eavesdropping or privacy-related crimes, the fine rises to $10,000. On top of that, if the other party decides to pursue a case, the violator may also have civil liabilities costing $5,000 or three times the amount of any actual damages sustained as a result of the eavesdropping.
We hope you have gotten a better understanding of the California recording laws in effect. Check out our other articles here!
About The Author: Michael is an aspiring lawyer who likes to spend his free time researching different topics of law, especially about what is legal and what is not. He enjoys reading articles, watching documentaries, and attending lectures to become more informed about the law. He hopes that one day he will be able to use this knowledge to help people in need. Michael also has a passion for writing which led him to pursue journalism as his minor in college.
Through his studies, he has learned how to write professionally with clarity and precision. He is currently writing a novel about the life of a young lawyer who fights for justice in a world that is filled with corruption. Michael hopes to use his skills in writing and researching to pursue a career as an attorney one day. In addition, he also volunteers at legal aid clinics to gain more experience. From this volunteering experience, he has been able to help people better understand their rights and the legal system.
Michael is a dedicated individual with a passion for law and writing, and these qualities make him an excellent candidate for any legal field. He is eager to use his skillset to prove himself as a lawyer in order to contribute in making the world a better place.