California Right to Privacy Lawyer – Illegal Phone Call Recording, Cell Phone Privacy, Unlawful Eavesdropping Law.
Introduction – California Penal Code Privacy
California is a two-party consent state when it comes to taping phone calls. This means, both parties to the phone conversation must consent to it being recorded, or potentially unlawful activity is occurring. One California case highlights the protections offered by California privacy law in regard to recorded telephone conversations. In Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 99, 137 P.3d 914, 917 (2006) the facts of the case were simple:
“The complaint in this case alleges that employees at the Atlanta-based branch of defendant Salomon Smith Barney (SSB)—a large, nationwide brokerage firm that has numerous offices and does extensive business in California— repeatedly have recorded telephone conversations with California clients without the clients' knowledge or consent. These facts give rise to a classic choice-of-law issue, because the relevant California privacy statute generally prohibits any person from recording a telephone conversation without the consent of all parties to the conversation, whereas the comparable Georgia statute does not prohibit the recording of a telephone conversation when the recording is made with the consent of one party to the conversation. In this proceeding, several California clients of SSB filed a putative class action against SSB seeking to obtain injunctive relief against its Atlanta-based branch's continuing practice of recording telephone conversations, resulting from calls made to and from California, without knowledge or consent of the California clients, and also seeking to recover damages and/or restitution based upon recording that occurred in the past. SSB filed a demurrer to the complaint, maintaining that no relief is warranted, because the conduct of its Atlanta-based employees was and is permissible under Georgia law.”
The Plaintiff sought damages and injunctive relief.
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California is a two-party consent state
Many states have a two-party consent system. Some states are the opposite and allow one party to record the other as long as one party consents to the recording by electronic device. The relevant code section in California is penal code section 632. Courts have noted:
“Section 632 is part of California's invasion of privacy statutory scheme. It provides, in relevant part, that “every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic … device … records the confidential communication” violates the statute. Cal. Pen.Code § 632(a). Accordingly, the three elements that Plaintiff must prove are: (1) an electronic recording of (or eavesdropping on); (2) a “confidential” communication; and (3) all parties did not consent. See Flanagan v. Flanagan, 27 Cal.4th 766, 774–76, 117 Cal.Rptr.2d 574, 41 P.3d 575 (2002). California Penal Code § 637.2 authorizes a private civil right of action for any violation of § 632. See Weiner v. ARS Nat. Servs., Inc., 887 F. Supp. 2d 1029, 1032 (S.D. Cal. 2012).
In Kearney v. Salomon Smith Barney the Court noted”
“As explained below, California Penal Code section 637.2 authorizes a civil cause of action for any violation of the applicable invasion-of-privacy statutory scheme, and Cal. Penal Code section 632 is the specific provision of that scheme that governs the unlawful recording of telephone conversations. (See, post, 45 Cal.Rptr.3d at pp. 746–749, 137 P.3d at pp. 928–930.).” California Penal Code Section 632 in Detail: 632. (a) 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. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. Bonus materials: 50-states reference chart for illegal tape recording laws.
What is a “confidential communication” under Cal. Penal Code Sec. 632(c)?
“(c) The term “confidential communication“ includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” One California court has touched on this element of the cause of action: “California prohibits the recording of a telephone call without consent from all parties, but only if the call includes a “confidential communication.” (Pen.Code, § 632, subd. (a).) 1 Violation of the law is a misdemeanor ( ibid.) and may entail a civil penalty of $5,000 or three times the actual damages, whichever is greater (§ 637.2). Our Courts of Appeal have disagreed over the meaning of the critical term “confidential communication.” We granted review to resolve that disagreement. One line of authority holds that a conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. ( Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 250 Cal.Rptr. 819 ( Frio); Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 33 Cal.Rptr.2d 766.) Under the other line of authority, a conversation is confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties. ( O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 273 Cal.Rptr. 674 ( O'Laskey ); see Deteresa v. American Broadcasting Companies, Inc. (9th Cir.1997) 121 F.3d 460 ( Deteresa ).) We endorse the standard established in Frio and Coulter.” See Flanagan v. Flanagan, 27 Cal. 4th 766, 768, 41 P.3d 575, 576-77 (2002). This is a factor that needs to be closely examined by an experienced litigation counsel.= In Friddle v. Epstein (1993), 16 Cal.App.4th, 1649, 1660 [21 Cal. Reporter.2d 85 the Court held that disclosure of the communication to a third party was not required to be actionable. Some Defendant's mar argue there is no violation because no information was “leaked” to third parties. This should be challenged.
What if one party is a California Citizen, and the other party is a Citizen of another state?
If the call is tape recorded between a California citizen, and a non-California citizen (ex. Arizona) the question will become should the law apply, and a choice of law conflict might exist. If both parties live in a “two-party consent state” then there is a strong chance the recording of the confidential communication will be deemed illegal. For example, as the Kearney court noted: “ Accordingly, construing section 632 in light of the language and purpose of the relevant statutory scheme as a whole, we conclude that section 632 applies when a confidential communication takes place in part in California and in part in another state.” The situation can become tricky though.
What if the company that records is in California and the other party in a ONE PARTY CONSENT state?
Again, the “interstate” cases are tricky. Here is one way to analyze this problem/situation:
1. A California company must comply with California law. California is a “two party consent state” so both the caller (them) and the person they are recording (you) must be informed the call is being recorded. But this is ONLY IF you are BOTH in California. Again, CA is a two party consent state so this makes total sense and this is 100% INTRASTATE (within CA).
2. Where a California company is calling another state (ex. New York or Texas, etc.), this becomes an “interstate call” and the “Federal Call Recording Law” kicks in. As one leading website notes (Digital Media Law Project):
Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a “one-party consent” law. Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation. Furthermore, if you are not a party to the conversation, a “one-party consent” law will allow you to record the conversation or phone call so long as your source consents and has full knowledge that the communication will be recorded.
3. So as you can see, things become much more dicier when interstate calls are involved. There is an argument that federal law sets a baseline and states are allowed to provide more protections to their citizens. This is a federal principle, unless of course the Courts find that federal law “preempts” state law (one way is by “occupying the field” of regulation in this area).
So to summarize this, the position for illegal tape recording is best when you have a two-party consent state and a caller and client from the same state (ex. California). That would be the best position.
Another plausible legal position to evaluate would be where even though you have an interstate call, you have a caller and a client BOTH from two-party consent states. Here, arguably the more restrictive (or protective I guess you would say) standards of having both parties consent should be seen as the proper law to follow, but this is only one man's view. You have to check out the case law on your own to reach a final conclusion and every case is different.
Finally, where the case become choppy (and perhaps not a case worth pursuing) is where you have the interstate phone call from a two party consent state and the call goes into a one party consent state. Under that theory, (using the example above) if I were representing a California telemarketing company calling into a one-party state like New York, Colorado, or Arizona) I would argue that you live in one of these states you could not reasonably expect privacy in your calls since your home state law does not give you the right to that assumption (i.e. one party can record you without your consent).
So these are factors that have to be closely looked at in every case.
What does a Plaintiff have to prove to seek damages under California Penal Code Section 637.2?
Cal. Penal Code Section 637.2 states: 637.2. (a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts: (1) Five thousand dollars ($5,000) (2) Three times the amount of actual damages, if any, sustained by the plaintiff. (b) Any person may, in accordance with Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a). (c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.\ So even if there are not actual damages, a private cause of action may lie. But the concept of actual damages may be broader than most companies think as discussed below. Moreover, an action for “statutory damages” may lie.
What types of harm, injuries, or damages are recognized under California law?
This can vary, as the Court held in Friddle v. Epstein, 16 Cal. App. 4th 1649, 1660-61, 21 Cal. Rptr. 2d 85 (1993), opinion modified on denial of reh'g (July 7, 1993) in awarding $3,000 in damages to Plaintiff:
“The trial court denied defendants any recovery for the violation by plaintiff of their privacy by recording the August 18th conversation, on the ground that because plaintiff had not disclosed the contents of that conversation defendants suffered no injury. It has already been established that disclosure is not required to constitute a violation of section 632. The only remaining issue is whether section 637.2 entitles defendants to compensation. With section 637.2 the Legislature provided two measures of monetary recovery for persons whose privacy has been invaded. If the plaintiff has suffered injuries akin to those for emotional distress, “i.e., anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, anguish, etc.,” these are “actual” damages which shall be trebled. But it is only the alternative, the specified recovery of $3,000, which defendants claim. Section 637.2 is fairly read as establishing that no violation of the privacy act is to go unpunished. Any invasion of privacy involves an affront to human dignity which the Legislature could conclude is worth at least $3,000. The right to recover this statutory minimum accrued at the moment the privacy act was violated.” As footnote 9 to the case noted: “This lesser amount has been variously described as a “civil award” ( Ribas v. Clark (1985) 38 Cal.3d 355, 365 [212 Cal.Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417]), a “statutory penalty” ( Rogers v. Ulrich (1975) 52 Cal.App.3d 894, 896 [125 Cal.Rptr. 306]), and a “minimum damages award” (Comment, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182, 1252).
Can I recover damages for loss of employment or other damages that result from the illegal recording?
As for damages, here is what the illegal recording statute says:
§ 637.2. Civil action by person injured; injunction
(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:
(1) Five thousand dollars ($5,000).
(2) Three times the amount of actual damages, if any, sustained by the plaintiff.
(b) Any person may, in accordance with Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a).
(c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.
Actual damages, I would argue anyway, are any damages that she caused, and which would not have occurred but for her illegal taping. At least that is what I would argue. Whatever that amount, I would ask for TRIPLE as the statute indicates.
What is Cell Phone Privacy under California Penal Code Section 632.7?
Cal. Penal Code Section 632.7 states (a) 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 landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone…..” (penalties omitted).
This section has created a lot of state court litigation (often removed to federal court). Questions still arise in regard to the privacy of cell phones, cordless phones, and even the applicability of VOID (voice over internet protocal). This section has raised many issues and has lead to numerous CIPA class action (California Invasion of Privacy Act) lawsuits under Cal. Penal Code Sections 630-637.5. Some cases under 632.7 argue that “any” communication – not just those deemed “confidential” raise a cause of action under the statute. Plaintiff's lawyers are claiming even a VOIP violation can raise a CIPA lawsuit, while defense counsel are trying to limit the reach of the law to communications that are intercepted or recorded “while being transmitted over the airwaves, not after reaching its destination.”
If you believe your Cell phone, cordless phone or privacy rights over VOIP are being violated, please fill out the contact form below to discuss. We can look to taking a potential contingency fee arrangements in many cases.
Other California case law – illegal tape recording.
In Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 115-16, 137 P.3d 914, 928 (2006) the California Court discussed illegally taping phone conversations:
“We begin with the California statutory scheme. In 1967, the California Legislature enacted a broad, protective invasion-of-privacy statute in response to what it viewed as a serious and increasing threat to the confidentiality of private communications resulting from then recent advances in science and technology that had led to the development of new devices and techniques for eavesdropping upon and recording such private communications. (Stats.1967, ch. 1509, § 1, pp. 3584–3588, enacting Pen.Code, §§ 630–637.2.) . One of the provisions of the 1967 legislation—section 637.2—explicitly created a new, statutory private right of action, authorizing any person who has been injured by any violation of the invasion-of-privacy legislation to bring a civil action to recover damages and to obtain injunctive relief in response to such violation. Although other provisions of the statutory scheme authorize prosecutors to seek penal sanctions for violations of the statute, the imposition of criminal punishment on the basis of conduct that occurs in part outside of California presents potential constitutional and statutory questions different from those involved in the maintenance of a civil cause of action for damages or injunctive relief. (See, for example, Heath v. Alabama (1985) 474 U.S. 82, 87–93, 106 S.Ct. 433, 88 L.Ed.2d 387; People v. Betts (2005) 34 Cal.4th 1039–1047, 23 Cal.Rptr.3d 138, 103 P.3d 883; People v. Morante (1999) 20 Cal.4th 403, 427–430, 84 Cal.Rptr.2d 665, 975 P.2d 1071.) In the present case we have no occasion to consider the circumstances, if any, under which penal sanctions could or should appropriately be applied in such a factual context. The author of the 1967 legislation described the statutory provision establishing a private right of action as “perhaps the most effective enforcement mechanism available” for the privacy rights afforded by the enactment and our concern here is solely whether plaintiffs may maintain a civil cause of action for damages and/or injunctive relief under section 637.2 under the factual circumstances alleged in the complaint.
The Kearney Court also noted:
“California decisions repeatedly have invoked and vigorously enforced the provisions of section 632 (see, e.g., Flanagan v. Flanagan, supra, 27 Cal.4th 766, 776, 117 Cal.Rptr.2d 574, 41 P.3d 575 [“ the Privacy Act protects against intentional, nonconsensual recording of telephone conversations regardless of the content of the conversation or the type of telephone involved]”; Ribas v. Clark (1985) 38 Cal.3d 355, 361, 212 Cal.Rptr. 143, 696 P.2d 637 [“secret monitoring denies the speaker an important aspect of privacy of communication—the right to control the nature and extent of the firsthand dissemination of his statements”]; Warden v. Kahn, supra, 99 Cal.App.3d 805, 812–814, 160 Cal.Rptr. 471) and have looked to the policy embodied in the provision in analyzing invasion- ***755 of-privacy claims in related contexts. (See, e.g., Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907, 914–923, 85 Cal.Rptr.2d 909, 978 P.2d 67; Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 234–235, 74 Cal.Rptr.2d 843, 955 P.2d 469.).
Can you sue someone in civil Court for illegally taping your phone call or eavesdropping on you?
Yes. Here are California Civil Jury Instructions (CACI) 1809. Recording of Confidential Information (Pen. Code, §§ 632, 637.2). [Name of plaintiff] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of defendant] intentionally [eavesdropped on/ recorded] [name of plaintiff]'s conversation by using an electronic device; 2. That [name of plaintiff] had a reasonable expectation that the conversation was not being overheard or recorded; [and] 3. That [name of defendant] did not have the consent of all parties to the conversation to [eavesdrop on/record] it; 4. [That [name of plaintiff] was harmed; and 5. [That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.]
If you think your legal rights have been violated by a company, or a “debt collector” (raising potential FDCPA violations), contact us below. We can help you analyze each prong you need to prove as a Plaintiff.
Can Attorneys in California litigation cases tape the conversations with the other attorney without their consent to try to help win a lawsuit?
No. As stated in Nissan Motor Co. v. Nissan Computer Corp., 180 F. Supp. 2d 1089, 1097 (C.D. Cal. 2002): “The Court finds that the recordation of conversations between counsel in the normal course of litigation, without consent, is a violation of California Penal Code § 632. In addition to being illegal, the Court finds that it is inherently unethical for an attorney to record a conversation with another attorney regarding the routine progression of litigation without the other party's knowledge or consent. “Inherent in the undisclosed use of a recording device is an element of deception, artifice, and trickery which does not comport with the high standards of candor and fairness by which all attorneys are bound.” Selby, 198 Colo. at 390, 606 P.2d 45. Such conduct damages the ordinary level of trust that should exist between counsel and contributes to the further deterioration of cordiality in the legal profession. This behavior raises suspicions, injures public confidence in the legal profession (and thereby the legal system), seriously impedes relations between counsel, and exerts a chilling effect on the normal flow of communication between opposing parties. “Simply put, such tactics are not becoming of an officer of the court.”
What other privacy laws that protect the “Right to Privacy in California?
As mentioned in Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 125, 137 P.3d 914, 935 (2006) there are other privacy interests protected in California including: “in recent years the California Legislature has continued to add provisions to and make modifications of the invasion-of-privacy statutory scheme here at issue (see, for example, Pen.Code, §§ 632.5–632.7 [cordless or cellular phones], 633.6 [permitting recording by victims of domestic violence upon court order] ) and in addition repeatedly has enacted new legislation in related areas in an effort to increase the protection of California consumers' privacy in the face of a perceived escalation in the impingement upon privacy interests caused by various business practices. (See, e.g., Civ.Code, §§ 1798.80–1798.84 [disclosure of consumer records], 1798.85–1795.86 [Social Security numbers], 1798.90.1 [driver's license information], 1798.91 [medical information], 1799–1799.2 [business records], 1799.3 [disclosure of personal information by providers of video cassette sales or rental services].) In addition, California's explicit constitutional privacy provision (Cal. Const., art. I, § 1) was enacted in part specifically to protect Californians from overly intrusive business practices that were seen to pose a significant and increasing threat to personal privacy. (See, e.g., Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 15–20, 26 Cal.Rptr.2d 834, 865 P.2d 633; White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222; cf. Rattray v. City of National City (9th Cir.1994) 51 F.3d 793, 797 [“Having one's personal conversations secretly recorded may well infringe upon the right to privacy guaranteed by the California Constitution”].)
Contact a Privacy Rights Law Firm (California and Arizona Cases only)
We have offices in San Francisco, San Diego, Newport Beach, Beverly Hills, and Phoenix, Arizona. We cover the greater bay area, Los Angeles County, Orange County, and Maricopa County areas (Scottsdale, Tempe, Mesa, etc.). We can represent both clients who have been illegally tape recorded (Plaintiff's) and companies accused of illegal recording (Defendants).
We can help you determine whether or not you have been illegally recorded, and whether or not your legal rights have been violated. In some cases, you may be entitled to monetary compensation, and to seek an injunction against the offending company, business, or debt collectors and their CEO”S and other officers who ratify, aid, abet, encourage and facilitate the illegal tape recording. This could also trigger a potential class action lawsuit and a suit for attorney fees under California Civil code section 1021.5 and potentially punitive damages under California Civil Code section 3294. Contact one of our privacy lawyers at (877) 276-5084 or fill out the form below and we will contact you. Please make sure to leave your phone number and a general description of your case. Paid consultations are also available for business owners seeking legal advice. Subject to time and availability.