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A Tangled Web, Indeed

We’ll see how the Stiviano-Sterling fiasco unfolds, but in case you were wondering, it’s a crime in California to record a private conversation without someone’s knowledge or consent.

California’s criminal anti-eavesdropping and -wiretapping laws are codified in a chapter of the Penal Code that concerns invasions of privacy, which isn’t suprising. The state constitution sanctifies a right of privacy in its very first section, declaring that “all people are by nature free and independent and have inalienable rights,” including the right to pursue “safety, happiness, and privacy.” Cal. Const. art. 1, § 1.

The Penal Code criminalizes wiretapping as well as electronically eavesdropping on or recording private conversations. Pen. Code §§ 631 & 632. Under the law, a private conversation includes any communication that is carried on in circumstances that reasonably indicate that any party wants it confined to its participants. Id. § 632(c). In other words, to record a private conversation in California, you need the consent of all parties to it.

In the case of wiretapping or electronic eavesdropping, the crime is a wobbler that can be charged as a misdemeanor or a felony. If it’s charged as a misdemeanor, you’re looking at a fine of up to $2,500 or a year in county jail. If it’s charged as a felony, you’re potentially subject to state prison for up to three years. Similar laws apply to the interception of communications among cell phones, cordless phones, and landlines. Id. §§ 632.5, 632.6, & 632.7. The major exceptions apply to law enforcement as well as participants who record in order to obtain evidence of extortion, kidnapping, bribery, harassment, or a violent felony. Id. §§ 633 & 633.5.

In addition to the criminal penalties, people who are injured by an illegal recording or wiretapping can sue for triple their actual damages or for statutory damages of $5,000 even if they suffered no economic damages at all. Id. § 637.2.

Federal law is different. It follows a “one-party-consent” rule, which means that it’s not a federal crime to record a private conversation if you’re a party to it, unless you’re doing it to commit a separate state or federal crime or tort. 18 U.S.C. § 2511(2)(d). If you’re doing it for some such nefarious purpose, or if you’re not a party to the conversation and don’t have anyone’s consent, then you can be punished by a fine of up to $250,000 or up to five years in prison. Id. § 2511(4)(a). You can also be sued for the greater of (1) the victim’s actual damages plus your profits from the violation; (2) statutory damages of $100 a day for each day of violation; or (3) statutory damages of $10,000 no matter what. Id. § 2520(b) & (c). You can also be on the hook for punitive damages as well as reasonable attorneys’ fees and litigation costs. Id.

About 38 states follow the one-party-consent rule. A minority of twelve states, like California, require the consent of all sides to the conversation. So what happens in the case of interstate phone calls? Well, the California Supreme Court has held that if a caller in a one-party-consent state records a conversation with a California resident, the out-of-state caller is subject to the stricter rule and must obtain consent beforehand. Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal. 4th 95.

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