When Is Recording a Telephone Call an Invasion of Privacy?

California law is not always straightforward when it comes to telephone privacy rights. Talk to your lawyer about whether you or another party to the case has a right to record a telephone call when going through a divorce or a child custody dispute. You should also ask whether you or the other party can reveal the contents of the call to the court, to introduce them into evidence in the case or influence the court in any way.

What Are the Basics?

California Penal Code § 632 (PC 632) prohibits an individual from recording a confidential communication between two parties. California is a "two-party" state. This means a recording is not allowed unless all parties to the conversation consent to the recording. PC 632(c) excludes communication made in a public gathering; in a legislative, judicial, executive or administrative proceeding open to the public; or under any other circumstance in which parties to the communication might reasonably expect the conversation to be overheard or recorded. A single violation of PC 632 can incur a fine of up to $2,500 and/or imprisonment for up to one year. The violator may also be subject to civil liability for $3,000 or three times the amount of actual damages sustained as a result of the recording.

Under the California Public Utilities Commission General Order 107-B(II)(A)(5), a party can make a recording if there is a "beep tone" warning in the conversation. The beep must be automatic. It must give notice before the recorded portion of the conversation begins. The beep indicates that parties are consenting to being recorded. They are also on notice that a device is recording the conversation. If one or more parties lie about the nature of the beep, that party will have trouble demonstrating the beep gave adequate notice. In addition, the court will find that party to have engaged in fraudulent conduct.

What Are Some Common Exceptions to Recording Without Permission?

Generally, if there is a standing restraining order in a civil case or an emergency protective order in a criminal case, the protected parties may record the alleged abuser without the alleged abuser's permission if the court order grants permission. The broad category of "restraining order" includes temporary restraining orders and permanent restraining orders. That is often a standard order but it is still best to examine the contents of the order to be sure.

If a person being recorded threatens another party with violence or is actively engaged in a crime, the person making the recording can argue that the recording was necessary to prepare a restraining order or initiate a criminal case. You should talk to your lawyer if a restraining order or criminal case results from an unauthorized recording.

Under PC 633, state law enforcement officials may eavesdrop and record telephone conversations. Usually a law enforcement officer requires a search warrant to record a conversation. If you or another party in the case is a law enforcement officer, talk to your attorney about how this will affect your case.

Why an Unauthorized Recording Can Still Come In

A party can seek to admit a transcript of an unlawfully recorded conversation to impeach the testimony of an individual, if that testimony varies from the information in the recording. Frio v. Superior Court (Ierace) (1998) 203 Cal.App.3d 1480, at 1490.

Your attorney may be able to recover and introduce evidence of any of the above through means other than the unauthorized recording.

Contact the Family Law Attorneys at the Law Offices of H. William Edgar to learn more about unauthorized telephone recordings. We are a group of experienced and skilled family law attorneys who have been practicing in Southern California for years.  Please call the office to set up a free initial consultation.  888-251-9618

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