As a criminal defense lawyer in Orange County I am frequently asked, in one form or another, what the law says about recording conversations. The short answer is that in California it is illegal to eavesdrop electronically or record a conversation that is intended to be confidential. This prohibition includes in-person as well as telephonic conversations.

California Penal Code Section 632 states;

“A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, . . . shall be punished . . . [by fine or imprisonment in jail or prison]”.

The crime of illegally recording or electronically eavesdropping on a confidential conversation is a “wobbler”, meaning that it can be punished as a misdemeanor or a felony.

Electronic Eavesdropping

It is important to note that this law does not criminalize old-fashioned eavesdropping–that which uses no electronic devices. Only ¬†eavesdropping by use of electronic device is criminal defense lawyeraddressed here. For example, if I were to hide under a bed to listen to a private conversation, I could not be charged under this law. However, if I were to put a tape recorder under the bed, or if I turned on the baby monitor and listened in another room, I could be charged with P.C. 632.

Consent To Recording Or Eavesdropping

Consent can be explicit or implicit. For example, if I call someone and ask if it is OK for me to record our conversation and they say “yes”, that is explicit permission. But if I answer my phone and say, up front, “this call is being recorded”, then if the caller continues the conversation they have consented to having the conversation recorded.

Confidential Communication

Section 632 only prohibits recording or electronically eavesdropping on “confidential” communications. The statute defines “confidential communication” as:

“. . . any communication carried on under circumstances ¬†as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering . . . [or in any proceeding open to the public] . . . or in any circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

So, whether a communication is protected by this statute depends on the substance of the conversation as well as the circumstances.

Free Telephonic Consultation With An Orange County Criminal Defense Attorney

The Law Office of EJ Stopyro offers a free and confidential telephonic case review and consultation. Call (949) 559-5500 to speak wit an experienced Orange County criminal defense attorney today. Our main office is located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675. We have meeting offices in Newport Beach and Orange.

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