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Penal Code 632.7, Unlawfully Recording Communications
It seems that in many cases involving a violation of a protective order, domestic violence or criminal threats, a client of ours will tell us, often with pride, that unbeknownst to the other party, they have the evidence needed to impeach another person because he or she secretly recorded another person admitting or confessing to something important.
The client’s secret recording can create significant problems, rather than lead to solving problems.
Brief Synopsis: Recording a telephone call without the other party’s consent is a violation of Penal Code § 632.7, but we suggest that whenever someone speaks to a police officer, it is prudent to regard the phone call as being recorded, even if the officer does not request permission to record the call.
Under the Invasion of Privacy Act, Penal Code § 632.7(a), it is a crime when one person “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” a cellular or cordless telephone and another telephone.
A violation of § 632.7 can be pursued civilly and lead to the assessment of damages and other appropriate relief.
The original interpretation of § 632.7 by court was that this law really only applied to a person who covertly eavesdropped on a conversation between someone on a cell phone and another person. In other words, it was not seen as a law that applied to parties to the conversation.
CA Supreme Court San FranciscoIn a recent California Supreme Court case ruling, in Jeremiah Smith v. LoanMe, Inc. (2021 DJDAR 3029), our state’s highest court resolved the scope of 632.7(a), holding that it applies to both nonparties to a conversation and parties to the conversation.
The case arose out of a brief conversation between LoanMe, wherein it extended a loan to the wife of plaintiff Jeremiah Smith. In October 2015, a LoanMe employee called Smith’s wife and Mr. Smith answered and told the LoanMe employee that his wife was not at home. The call lasted 18 seconds.
LoanMe recorded the call. After three seconds of the call, there was a “beep” tone in the call. LoanMe did not advise Mr. Smith that the call was being recorded or ask his permission to record the call.
In September 2016, in Riverside County Superior Court, Mr. Smith brought a class action on behalf of all putative class members in California “whose inbound and outbound telephone conversations involving their cellular or cordless telephones, were recorded without their consent by LoanMe or its agents within one year of the filing of the action.” The complaint alleged that recording of the calls violated Penal Code § 632.7.
The parties agreed to a bench trial, during which the judge agreed with LoanMe that the “beep” tone gave Smith adequate notice that the call was being recorded. The judge then entered judgment in favor of LoanMe.
Smith then appealed this ruling to the Fourth Appellate District Court of Appeals, which affirmed the trial court ruling, but not on the consent issue. Instead, it affirmed because it considered 632.7 to only apply to third-party eavesdroppers (non-parties) to a call, not the parties to the call itself. The court reasoned that if a party is on such a call, and voluntarily speaking to another person, there can be no expectation of privacy because the person normally consents to another person’s receipt of their “input.”
Smith then appealed to the California Supreme Court, which reversed in Smith’s favor. The highest court disagreed with the Fourth Appellate District, holding that consent cannot be implied or assumed just because someone is a party to a call and that the law applies to parties to a call, not just third-party interceptors of the call. The court acknowledged that the parties to a call might normally be regarded as consenting to receipt of their communications by another party to a call, this acquiescence would not, by itself, necessarily convey consent to having the communication recorded.
In presenting this article, we caution that this holding by the California Supreme Court should not be interpreted so broadly by the reader to believe that if a police officer calls one and identifies himself as a police officer, detective or sheriff and does not request permission to record the call that one can later ask to exclude the recording of the call under 632.7. If one is speaking with law enforcement, one should always regard the call as being recorded. This ruling is more applicable to recordings between private parties.
The citation for the California Supreme Court ruling discussed above is Jeremiah Smith v. LoanMe, Inc. (2021) 11 Cal. 5th 183, 483 P. 3d 869.
For more information about recorded admissions or confessions, please click on the following articles:
