Is It Illegal to Record Someone in California?

With smartphones and instant sharing, the desire to record moments, whether an argument or a critical conversation, has never been stronger. In California, however, a person can easily face legal trouble by simply pressing the record button. California is one of a handful of states that operates under a "two-party consent" law. This central rule has a significant impact on your chances of recording conversations.

In a nutshell, when confidentiality is understood to be part of a conversation, at least by one individual, then capturing it without the complete knowledge and agreement of all the participants involved can be a crime. These violations can lead to serious criminal and civil consequences. Violations could result in a court of law or a substantial civil lawsuit. It is important to know before you base your case on that secret audio as evidence: Where does California draw the line between lawful recording and illegal eavesdropping? This is discussed in the information below.

Understanding Invasion of Privacy Under California Penal Code 632

The Invasion of Privacy Act, based on California Penal Code (PC) 632, governs the recording and eavesdropping of confidential communications. It determines California as a two-party consent state, where all parties to a confidential communication must agree to the recording.

PC 632 prohibits any individual from eavesdropping or recording any confidential communication knowingly and without the consent of all parties, regardless of the method used for recording.

A communication is confidential when a participant reasonably believes it is not being overheard or recorded, and any of the parties involved in the conversation has an objectively reasonable belief that their communication would not be overheard or recorded by someone.

The law does not protect conversations when the participants should reasonably expect to be overheard, like in a public square, a noisy restaurant, or a public meeting. A violation occurs when a conversation is recorded without the consent of all parties.

Although PC 632 prohibits recording confidential communications, its application depends on whether the speaker has a reasonable expectation of privacy. Not every conversation is covered by the law, but only when the speaker has a justifiable, objective reason to believe that what they say will not be exposed to the external world.

To determine whether a conversation is confidential, courts apply a crucial yet simple test: Did the individual speaking have a reasonable belief that no one was listening, overhearing, or recording the conversation?

It is not the content of the communication (whether it contains sensitive secrets or mundane details) but the situation in which it is conveyed that matters. The area, place, quantity, and the activity around it determine the extent of confidentiality. For example, two people discussing sensitive information in a crowded airport likely lack privacy, while a simple conversation about the weather in a closed office may still be protected.

Understanding the context is everything. The following are examples of how the physical setting can be used to define legality:

• Private setting (probably confidential) — This refers to a closed-door meeting in a private office, a quiet conversation between individuals in a bedroom, or a call made over a reserved telephone line. In these cases, there is sufficient reason to believe that the discussion is confidential due to the geographical separation.
• Public place (not confidential) — Arguments in loud public areas generally lack confidentiality because surrounding people can easily overhear. These are circumstances where participants waive their right to privacy due to the high likelihood of being overheard by members of the population. The environment determines the legality rather than the content of the words themselves.

Thus, being the one who initiated the recording, it is always up to you to consider that the other parties in the conversation have taken reasonable steps to ensure that their conversation remains private. If they haven't, the communication is generally regarded as public and unprotected by PC 632, meaning you would not be in violation.

The Importance of the Difference Between Video and Audio

PC 632 is an eavesdropping law, which means that its main emphasis is on audio communication itself. This poses a critical difference between recording videos and those with sound.

Generally, recording a silent video in a shared space, for example, a workplace, an open area in your house, or on the street, is unlikely to constitute a violation of PC 632. The reason is that PC 632 was designed for confidential communication, and without sound, it is impossible to record the conversation or eavesdrop.

This is why most companies and residential owners using gadgets like nanny cams incorporate video-only surveillance in common areas of a home or business. However, when you capture audio on a nanny cam, you must comply with the two-party consent provision of PC 632 or face both criminal and civil penalties.

Although you may do it in a video without any audio, you can still commit a serious crime if the recording was made in a very private place. California Penal Code 647(j) introduced it as a separate misdemeanor crime to covertly record or capture a photograph of another person when the person is in a private area where they reasonably expect not to be recorded, like while undressing.

PC 647(j) offers universal protection to private areas that include:

• Bedrooms and bathrooms
• Dressing rooms, changing rooms, and fitting rooms
• Tanning booths

When you install a hidden camera in any of these places, even for a silent video recording, you are charged with invasion of privacy, commonly referred to as a "peeping Tom" law. Whether audio was recorded or not, the legality of the recording in these particular places depends on the location and the purpose of the intrusion on privacy.

When Can You Record? (Exceptions to the Rule)

Although California has a two-party consent policy (PC 632) that is very strict, there are important exceptions that permit recording without universal consent. These exemptions depend on the context of the communication, as well as whether the communication is criminal or not.

1. The Recording of Public Officials (The Police Exception)

Filming the activities of on-duty governmental officers, like police officers, in a crowded place avoids the stringent provisions of PC 632. The exception arises because an officer on duty in a place where people can observe them loses any reasonable expectation of privacy regarding their actions.

Moreover, this act is guaranteed since the right to record government activity is a safeguarded right. In particular, the First Amendment to the Constitution guarantees the right of a citizen to record police work as an essential act of information collection related to social issues of interest.

This right is, however, not absolute. Although the provision of documentation is not prohibited, citizens should not in any way hinder or interfere with the legitimate functions of the officer, which constitutes a separate offense under PC 148(a)(1). Therefore, maintain a reasonable distance and follow any valid order to reposition.

2. Collection of Evidence of Serious Felony (PC 633.5)

California Penal Code 633.5 offers a critical exemption to private citizens who are part of a communication. Even without the consent of the other party, you are permitted by law to record a confidential conversation just in case the main aim is to secure evidence that is likely to be of value in committing some serious crimes.

This exception applies to:

• Extortion
• Kidnapping
• Bribery
• Human trafficking
• Any felony involving violence against the person, for example, domestic violence

Importantly, any audio evidence that was received under this exception may be used in court to convict the perpetrator of the enumerated offenses, which supersedes the general inadmissibility policy outlined under PC 632.

Recording in the Workplace

The use of PC 632 in the workplace is more reliant on the reasonable expectation of privacy prevailing in the particular setting, which may be challenging to establish.

Employee Recording Rights

The concept of a reasonable expectation of privacy takes on a different nature in the context of private employment. Included in the protection provided in PC 632 is the recording of a disciplinary meeting or a performance review in a closed-door office where the discussion can not easily be overheard, which makes the communication confidential. Recording an HR representative or supervisor without their express permission in a high-privacy environment would therefore be a violation of the statute.

This is a much relieved condition depending on the nature of the environment. Open workspaces generally reduce privacy expectations, but some conversations may still be considered confidential depending on proximity and audibility. On the contrary, any dialogue behind closed doors or in a private office that requires some isolation ensures a high level of privacy; therefore, consent is an absolute requirement for legal documentation.

Employer Rights and Consequences

Employers have the privilege of monitoring or recording employees, provided they give them clear and conspicuous notice or obtain their affirmative consent. In general, employers typically fulfill this demand by signing policy agreements at the time of employment, thereby erasing the reasonable expectation of privacy that employees have in most work-related relationships.

There are two serious risks associated with secretly recording a confidential communication:

• You put yourself at risk of civil or criminal liability, possibly including civil lawsuits with penalties of $5,000 per violation or a criminal prosecution under PC 632
• You are almost inevitably going to lose your job due to violating a written, unambiguous company policy that has been compromised by unauthorized recordings, regardless of how legal such recordings may be under state law.

Challenges Posed by Modern Technology for PC 632

New consumer technologies that feature built-in recording capabilities are often challenging the fundamental concept of a reasonable expectation of privacy.

Dash Cams and Rideshares (Uber/Lyft)

External dashcam video and audio record activities that occur on general roadways, where individuals do not expect privacy. In turn, external street activity can be recorded without any legal restriction, in general. On the other hand, the passenger compartment of the car is an interior space, which is essentially a semi-private one, and this changes the legal landscape, especially regarding the audiotapes of the passengers.

This change in place places the recordings of cabin conversations under the guise of permission, constituting a direct infraction of California Penal Code Section 632, which firmly regulates the use of hidden recordings in confidential conversations. Since passengers are often unaware that the camera captures sound, the driver lacks the requisite consent, which exposes them to liability under the statute.

Rideshare companies rely on implied consent through conspicuous notice. However, legal challenges persist. The driver notifies the passenger of the recording by displaying a conspicuous notice, for example, through decals on the windows. The passenger's act of proceeding with the trip then means consent, legally defending the driver against the PC 632 charge.

Smart Doorbells (Ring, Nest) and Surveillance

It is lawful to maintain a video of a porch, driveway, or public sidewalk using smart security cameras, as they do not provide any reasonable expectation of privacy. On the other hand, these devices have sensitive microphones, which have significantly altered the legal compliance landscape.

These sensitive audio recordings pose the risk of breaching California Penal Code 632. If the audio captures confidential conversations that people reasonably believe are private, it may violate PC 632.

The only aspect that makes it legal is whether the individuals being recorded had a reasonable expectation that what they said would not be disclosed. To avoid this significant risk under the law, users must either switch off the audio option or display clear signage.

Video Conferencing (Zoom, teams)

When documenting a conversation that may involve confidential interactions, the use of digital communication platforms must comply with the two-party consent requirements. Video conferencing platforms like Zoom and Microsoft Teams meet the requirement of the all-party consent rule by enabling hosts to provide automatic notification of clear recordings. This typically entails placing a noticeable banner or audio announcement for every party when the recording of the session starts.

After this explicit notification, the participants consequently decide on the legality of the recording by the host. The implied consent of a participant in the recording, given that they have agreed to stay in the meeting, constitutes a legal consent to record in accordance with Penal Code 632. Conversely, immediately leaving the session after receiving the announcement signifies a participant's active choice to withhold consent.

Penalties for a PC 632 Violation

A violation of PC 632 is a wobbler offense. This categorization leaves the prosecuting attorney with the discretion to prosecute the crime as either a misdemeanor or a felony, depending on the case facts, the extent of the damage, and the defendant's prior criminal record.

In the case of a misdemeanor, a possible sentence includes one year in county jail or a fine of up to $2,500.

When the prosecution pursues felony charges, you can be imprisoned in the state prison (for 16 months, two years, or three years) or pay a fine of up to $10,000 if convicted.

For subsequent violations, the punishment is automatically elevated, usually resulting in a felony charge and higher fines for you.

Civil Penalty (PC 637.2)

Besides the prospect of criminal prosecution, when you record a confidential communication illegally, there is also a possibility that you will be sued as well by the victim under California Penal Code 637.2. This creates a civil cause of action, allowing victims to sue for damages against you as outlined in this statute.

The victim can claim against you the amount of these damages, depending on the violation:

• Statutory damages — A fine of $5000 per infraction
• Treble damages — Triple the amount of real damages suffered

Being able to recover statutory damages of $5,000 per violation is highly relevant since it would mean that the victim should not demonstrate that they were actually harmed either emotionally or financially to be able to sue you successfully. This civil penalty serves as a significant discouragement to the unlawful recording of you.

Divorce Court and Family Law Special Case

In the context of divorce, custody, and family law, utilizing secret recordings, even if you attempt to fit the evidence under the narrow impeachment exception for PC 632, often results in significant detriment. Judges in family courts also take the practice of spying on your spouse with a hidden tape recorder with tremendous distrust. This is a highly inappropriate and bad-faith practice that can seriously harm your credibility and character in court, which is a crucial factor to consider, particularly in custody cases. In these cases, the primary concern of a judge, when it comes to a child, is to ensure that the child's best interests are protected.

Moreover, much of the evidence, which has been taped in secret, is generally not relevant to the case, mainly because California is a no-fault divorce state. Not having to present fault, that is, adultery or any other form of marital misconduct, to receive a dissolution of marriage, any piece of recording that documents these personal affairs is automatically inadmissible. It can offer you no legal advantage, only subjecting you to judicial penalties as a result of the unlawful recording.

A crucial, yet complex, exception to the rule is the domestic violence exception, which aligns with PC 633.5. That recording can be used to establish abuse in case you reasonably believe you are recording evidence of domestic violence or other felonies against the individual or are seeking a domestic violence restraining order (DVRO). Although the legal momentum is to have these recordings admitted to safeguard the victims, the field is still factual. There is an excellent likelihood of risks and disapproval by the courts when using secret audio recordings. In that matter, you are highly recommended to use sources of evidence that are admissible in court, namely, financial records, texts, emails, and witness testimonies.

Find a Criminal Defense Attorney Near Me

In California, the answer is yes, recording confidential communications without consent is illegal. It is unlawful to record a confidential communication, whether in person or by phone, without the approval of all participants. Breaking this law of two-party consent (Penal Code 632) may result in severe criminal prosecution and civil fines. Lack of knowledge of the law is no excuse, and a slip of the tongue can transform an investigation into a legal suit against you.

If you have been charged with allegations regarding the illegal recording or require the services of an attorney familiar with the intricacies of California's stringent laws concerning privacy, call Los Angeles Criminal Attorney. Our criminal defense team will work to defend your rights and your future. Contact us at 424-333-0943.