Penal Code 632 PC - Eavesdropping Law in California
Overhearing someone else's private conversation is one thing; intentionally eavesdropping is another. And in the state of California, if you use an amplification or recording device to eavesdrop on someone's confidential communication, it is a crime under Penal Code 632 PC.
California is a “two-party consent” state, meaning both parties to a conversation must consent to record it, or the person recording may face potential criminal liability. If convicted, depending on the facts of the case and the severity of the charge, you could face up to 3 years in state prison.
PC 632 says, “anyone who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record it, or to use a telegraph, telephone, or another device, will be punished by a fine up to $2,500 per violation, or up to one year in county jail, or both. If the person has a previous conviction, the penalty increased to $10,000 or both jail and a fine.”
There are some essential factors to consider when evaluating whether a given recording of a conservation rise to criminal liability under Section 632. First is whether the defendant intended to eavesdrop on another's conversation.
Another factor is whether the defendant used an electronic device to listen in on somebody's conversation and make a recording. PC 632 does not criminalize all acts of eavesdropping. This conduct is not criminal if someone listens in on another person's private conversation using their unaided ears.
Yet another factor is whether the conversation could reasonably be considered confidential, which is described as one in which any party had an objectively reasonable expectation of privacy, including any discussions that occur within someone's home.
The final factor is whether the defendant had the consent of all parties to the conversation to listen in or record it. Let's take a closer examination of this law below.
Penal Code 632 PC Explained
Under PC 632, criminal eavesdropping is defined as willfully using "an electronic amplifying or recording device to eavesdrop upon or record the confidential communication" between other people without the consent of all parties.
As mentioned above, it should be noted that California is a two-party consent state, specifically for telephone calls between two people.
This means both parties (or, in essence, all parties) must consent to their conversation being amplified or recorded. Otherwise, it is a crime. In other words, more is needed to have the consent of just one of the people in the conversation. Other things to know about this law:
- A communication is considered "confidential" if it's not intended to be overheard by others or if there is a reasonable expectation of confidentiality by any of the parties involved.
- The term "electronic amplifying or recording device" is broadly defined to include any technology that can be used to make an audio recording of a conversation. This includes, but is not necessarily limited to, traditional tape recorders, digital audio recorders, cell phone recorders, laptops, etc.
To convict you of this crime, the prosecutor must prove the following elements beyond a reasonable doubt:
- You willfully eavesdropped on or recorded an in-person or telephone communication between two or more other people;
- You used an electronic amplifying or recording device to do so;
- You did so without the consent of all parties to that conversation; and
- You knew (or reasonably should have known) that the conversation was confidential.
The related crimes are Penal Code 631 PC wiretapping, Penal Code 647(i) PC peeking while loitering, and Penal Code 647(j) PC criminal invasion of privacy.
What Are Some Examples?
EXAMPLE 1: Todd places a hidden microphone in his boss's office to record his conversations with other employees. Todd is violating PC 632 because he is recording confidential discussions.
EXAMPLE 2: Dave is a private investigator hired by George to see if his wife is cheating. George's wife and the man are speaking in hushed tones in the corner of a coffee shop.
Dave sits at a nearby table, pretending to be engrossed in his work on his laptop, but he's recording their conversation. Dave could be charged under PC 632 because although the couple was in a public place, they had a reasonable expectation that their discussion was confidential and not intended to be heard by others.
EXAMPLE 3: Josh hides in the backseat of his sister's car to eavesdrop on her and her boyfriend.
Josh is NOT guilty under PC 632 because although he is eavesdropping, he is not using an electronic device to listen to or record the conversation.
What Are the Exceptions to Eavesdropping?
There are effectively two instances in which eavesdropping rules would not apply, and you would not be convicted of a crime:
- If you are a law enforcement officer carrying out your duties. Law enforcement is not only allowed to record private conversations with probable cause, but the recordings themselves may be admissible as evidence in court if procured with a proper warrant.
- If you set up video/audio surveillance in your home for security purposes. You have the right to set up surveillance in your home, and any conversations recorded would not be eavesdropping—EXCEPT when there's a reasonable expectation of privacy (e.g., in the bathroom).
What Are the Penalties?
Eavesdropping is a "wobbler" offense in California, meaning it can be charged either as a misdemeanor or a felony. The specific charge will depend on the facts of your case, your criminal history, and whether anyone was harmed as a result of the eavesdropping.
- If you're charged with a misdemeanor: If convicted, you face up to one year in county jail and a fine of up to $2500.
- If you're charged with a felony: If convicted, you face up to 3 years in prison and a maximum fine of $2500.
What Are the Common Defenses?
The most common defenses used to combat eavesdropping charges have something to do with disproving one or more of the four elements of the crime, as listed above. Let's review them below.
Perhaps we can argue that your actions weren't willful. For example, you happened to capture the conversation by accident. An argument could be made that the communication was not confidential.
Perhaps we can argue that you did not use an electronic device. Overhearing a private conversation is not a crime; it must be amplified or recorded.
Maybe you had the consent of all parties. Everyone knew you were recording and agreed. Maybe there was no reasonable expectation of confidentiality. For example, if the parties were talking loudly in a public park, no one could reasonably expect their conversation to be private.
If you or someone you know is under investigation or already charged with PC 632 eavesdropping, reach out to our law firm to review the details and legal options.
Eisner Gorin LLP is based in Los Angeles. You can contact us for an initial case consultation by phone or fill out the contact form.
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