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Put a Stop to Your Client’s Illegal Recording Activity

Whether it’s to expose an unfaithful fiancé or set the record straight on a public feud, dictophoneself-appointed vigilantes should think twice before recording a private conversation: it’s against the law. Here’s what to tell your sleuthing client about California’s privacy laws.

California’s Invasion of Privacy Act (Pen C §§630-638) prohibits the eavesdropping on or recording of confidential communications without the consent of all parties to a conversation. A communication is “confidential” when at least one of the parties has an objectively reasonable expectation that the conversation isn’t being overheard or recorded. Flanagan v Flanagan (2002) 27 C4th 766.

Under the law, the following constitute prohibited forms of privacy invasion:

  • Wiretapping, which means intercepting a conversation in transit over a wire (Pen C §631);
  • Eavesdropping on (e.g., listening via an electronic amplifying device) or recording confidential conversations (Pen C §632);
  • Intercepting cell phone conversations (Pen C §632.5);
  • Eavesdropping on phone calls transmitted between cordless phones (Pen C §632.6);
  • Unauthorized opening of sealed envelopes containing telephone or telegraph messages (Pen C §§637–637.1);
  • Using extension telephones or video recorders to accomplish the monitoring (Ribas v Clark (1985) 38 C3d 355, 363; People v Biggons (1989) 215 CA3d 1204, 1208); and
  • Trying to do any of the above (Pen C §631(a)).

A person who violates the Act is guilty of a criminal offense, punishable by a fine up to $2,500, imprisonment up to a year, or both. Pen C §632. And a person injured by the prohibited activity may bring a civil action for the greater of $5,000 or 3 times the amount of actual damages he or she sustained. Pen C §637.2. A violation could also provide grounds for a common-law invasion of privacy claim, which could include punitive damages. See, e.g., Clauson v Superior Court (1998) 67 CA4th 1253.

Although it feels good to be right, proving it with wrongfully obtained information could leave a pretty bad sting. So be sure to remind your over-eager client of the consequences of playing detective. For more on California’s Invasion of Privacy Act and other privacy issues, check out CEB’s Privacy Compliance and Litigation; California Business Litigation, chap 11; California Tort Damages, chap 9; and Advising California Employers and Employees, chap 9.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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