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Can You Eavesdrop or Record Without Consent?

            The California State Legislature has declared that advances in the science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increase use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society.  The legislature intends to protect the right of privacy of the people of the State of California.

            The Penal Code specifically prohibits wiretapping or intersecting messages.  The first offense is punishable by a fine of $2,500 and up to one year in the County Jail or even the State Prison.  A second offense can result in a fine of up to $10,000.00 and up to one year in the County Jail or imprisonment in the State Prison.  You don’t actually need to be successful to be found guilty.  Any attempt or conspiring without someone else or employing someone to do this is sufficient to find you guilty.  Many of the privacy laws relate to each other and a violation of one is considered a prior violation.  These rules apply to just about any form of electronic communication including cell phones, cable, internet, phone lines, and even telegraph lines.

            Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars

($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.   See Penal Code § 632.  A second violation of this or another privacy law increases the fine to $10,000.00.

            There is an exception for the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.

            Under Penal Code § 632.5,every person who, maliciously and without the consent of

all parties to the communication, intercepts, receives, or assists in intercepting or receiving a communication transmitted between cellular radio telephones or between any cellular radio telephone and a land line telephone shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), by imprisonment in the county jail not exceeding one year or in the state prison, or by both that fine and imprisonment.

            Every person who, maliciously and without the consent of all parties to the communication, intercepts, receives, or assists in intercepting or receiving a communication transmitted between cordless telephones , between any cordless telephone and a land line telephone, or between a cordless telephone and a cellular telephone shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.  Once again a prior violation of one of various privacy laws increases the fine up to 10,000.00.

            Every person who, without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones, a cellular radio telephone and a land line telephone, two cordless telephones, a cordless telephone and a land line telephone, or a cordless telephone and a cellular radio telephone, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

            It is also illegal to sell devices designed for the purpose of violating the privacy codes.

Penal Code Section 635, states that every person who manufactures, assembles, sells, offers

for sale, advertises for sale, possesses, transports, imports, or furnishes to another any device which is primarily or exclusively designed or intended for eavesdropping upon the communication of another, or any device which is primarily or exclusively designed or

intended for the unauthorized interception or reception of communications between cellular radio telephones or between a cellular radio telephone and a landline telephone in violation of

Section 632.5, or communications between cordless telephones or between a cordless telephone and a landline telephone in violation of Section 632.6, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.  A violation of a prior privacy code increases the fine to $10,000.00.

            The penalties are more severe for recording more intimate conversations.  Penal Code Section 636, states that every person who, without permission from all parties to the conversation, eavesdrops on or records, by means of an electronic device, a conversation, or any portion thereof, between a person who is in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law enforcement agency or other public agency, and that person's attorney, religious adviser, or licensed physician, is guilty of a felony.

This subdivision applies to conversations that occur in a place, and under circumstances, where there exists a reasonable expectation of privacy, including a custody holding area, holding area, or anteroom.   This subdivision does not apply to conversations that are inadvertently overheard or that take place in a courtroom or other room used for adjudicatory proceedings.  A person who is convicted of violating this subdivision shall be punished by imprisonment in the state prison, or in the county jail for a term not to exceed one year, or by a fine not to exceed two thousand five hundred dollars ($2,500), or by both that fine and imprisonment.

            Intercepting police radio communication for the purpose of assisting a criminal is also unlawful.  Penal Code Section 636.5, States that any person not authorized by the sender, who intercepts any public safety radio service communication, by use of a scanner or any other means, for the purpose of using that communication to assist in the commission of a criminal offense or to avoid or escape arrest, trial, conviction, or punishment or who divulges to any person he or she knows to be a suspect in the commission of any criminal offense, the existence, contents, substance, purport, effect or meaning of that communication concerning the offense with the intent that the suspect may avoid or escape from arrest, trial, conviction, or punishment is guilty of a misdemeanor.

            It is unlawful to use a lie detector test without the person’s consent.   No person or entity in this state shall use any system which examines or records in any manner voice prints or other voice stress patterns of another person to determine the truth or falsity of statements made by such other person without his or her express written consent given in advance of the examination or recordation.  Any person who has been injured by a violator of this section may bring an action against the violator for his actual damages or one thousand dollars ($1,000), whichever is greater.

            Under Penal Code § 633.5, you are permitted to record confidential communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, or any felony involving violence against you, or to record a person that makes phone calls to you to annoy you or communicates electronically and threatens to inflict injury to you or your property.  You are also permitted to record former girlfriends or boyfriends or spouses that call 10 or more times at your place of work within a 24 hour period.

            A judge may also give permission to a victim of domestic violence to record the perpetrator if certain communication has been prohibited by a restraining order.   

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