New technology, same law. As reported by Wired.com, the Second District Court of Appeal has held that when one party to a conversation uses an iPhone to secretly record the conversation, it does not violate the Wiretap Act as long as the recording is done for legitimate purposes. This ruling (.pdf) is consistent with those of other circuits, including the Ninth Circuit, that have tackled similar issues.
There is a major exception to wiretapping ban: A person not acting under state law who is a party to the communication does not violate the Wiretap Act by intercepting a wire, oral, or electronic communication “unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or law of the United States or of any State.” 18 USC §2511(2)(d). Basically, the party to the conversation does not violate the Act by secretly recording it unless he or she intends to use the recording to commit a tort of crime beyond the act of recording itself. The Second Circuit based its iPhone ruling on this exception and found no such nefarious purpose.
Please note that the ruling here was under the federal Wiretap Act, and that California law governing electronic eavesdropping and wiretapping, the Invasion of Privacy Act (Pen C §§630-638), differs from the federal scheme.
For more on the Wiretap Act, including defenses and remedies under the Act, check out CEB’s California Business Litigation, §§9.19-9.21 (Cal CEB 2002) and Privacy Compliance and Litigation in California, §§4.42-4.45 (Cal CEB 2008).
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