Can You Record a Phone Call Without the Consent of Others in California

[curiouscali]

My question involves civil rights in the State of: California

I have read hundreds of posts about one-party consent vs. two-party consent and understand that I cannot record both/all sides of a phone conversation where any party is located in California without consent of all parties. Understood...

May I record only myself during the conversation without the other parties knowledge or consent? Would the manner in which the audio is captured be a legal component? Such as an application within my mobile phone versus an external recording device?

Examples:

1. I am a sales person and announcing the call is being recorded may effect the sale. Hearing the customer is not important in reviewing my own performance. Rather than announce the recording and capture the other party, I only record myself so I may listen back and audit myself at a later time (evaluate my inflection, tone, annunciation, etc.)?

2. I am disputing another party regarding a local civil matter and I fear the other person may accuse me to others of being hostile, yelling, swearing, etc. In this case what the other person says is not important, only proof of my civility in the conversation. The other party is never officially identified.

3. Somebody makes an accusation of me "flirting" or acting inappropriate during a call to my spouse. I have audio/video recording in my home/office for the purpose of security and it captures only my voice during a call. This call couldn't effectively be used in court but would be valuable to my spouse to demonstrate my behavior.

I hope that I have made my point with regards to my voice being the only one recorded. No audio of any kind from the other side. There are so many times that this would be helpful to show a timeline, make notes, affirm/deny allegations, etc. From what I can tell there is no clear answer or case law but I admit that I am not a trained legal professional.

Your answers are appreciated!

[Taxing Matters]

I think you do run a risk of violating the statute if you do it. The way the statute is structured it is illegal for any person to using an electronic device to eavesdrop upon or record a “confidential communication” without the consent of all parties to the communication, whether the parties are in the same room or they are communicating by “a telegraph, telephone, or other device, except a radio.” Cal. Penal Code § 632. Thus, I think that if someone else were to record your half of the conversation by secretly placing an audio recorder in the room that would violate the statute as it is recording part of a confidential communication without the consent of all parties to the conversation. The fact that the other party could not be heard and was not recorded should not block you from complaining about the recording. That being the case, even if you are the one recording that conversation, it would still violate the statute because you are doing the same thing: recording part of a confidential communication without the consent of ALL parties involved. After all, the person on the other end might well carry on the conversation differently if he or she knew that any part of it was recorded as that might prompt different responses from you. It’s not just about recording what the other person says.

I found only one case that seems to raise this issue. In that case, a TV crew followed a team of police officers as they discovered a dead body. During the course of that investigation, the police identified the victim and one of the officers called the parents of the victim to tell them that their son was dead. The TV crew captured only the words spoken by the police officer; there were indistinct sounds recorded through the handset of the phone the officer was using but there was no device recording both sides of the conversation. The TV crew simply was recording what the officer was saying, with his consent but not the consent of the parents on the other end. The court concluded that it violated California’s wiretap statute:

Section 632, subdivision (c) provides: “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....” (Italics added.) Thus, if one party to the conversation has not consented to the recording, section 632 has been violated. (Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 928, 33 Cal.Rptr.2d 766.) The fact the actual words spoken by the parents may not be discerned does not preclude the viewer from recognizing the anguish in the response to the phone call.

We conclude that the videotape demonstrates a prima facie case of invasion of privacy by intrusion as well as violation of section 632. Therefore, the court erred in granting the section 425.16 motion on those causes of action.

Marich v. QRZ Media, Inc., 73 Cal. App. 4th 299, 86 Cal. Rptr. 2d 406, 420 (1999)(rehearing denied and case subsequently ordered depublished). The facts there are bit a different than what you propose in that something was heard and recorded from the other party, but the recording was simply a video of what the officer was doing, no different than you having a recorder sitting on your desk recording your side of the call and perhaps sometimes picking up some indistinct sound from the other end. In any event, the actual words spoken by the other side were not recorded nor was an attempt made to record them and yet the court still found that the recording would violate the statute. I would suggest you ask a California criminal defense lawyer about this issue and point out the Marich case in particular and see what the attorney says about your risk of possibly being convicted of this offense or being successfully sued for damages. Given the serious consequences of violating the statute — a fine of up to $2,500 and/or imprisonment in county jail or state prison for up to year — you want really sound advice before making those recordings.

[cbg]

If you are frequently involved in situations where you need a voice recording to prove what was said or the tone it was said in, that frankly says a lot about you and not in a good way.

[yyz0]

I think you may be over estimating the value of these recordings.

1. I am a sales person and announcing the call is being recorded may effect the sale. Hearing the customer is not important in reviewing my own performance. Rather than announce the recording and capture the other party, I only record myself so I may listen back and audit myself at a later time (evaluate my inflection, tone, annunciation, etc.)?

This seems useful and if this is never used to "prove" anything to anyone the chances of getting in trouble are pretty slim.

2. I am disputing another party regarding a local civil matter and I fear the other person may accuse me to others of being hostile, yelling, swearing, etc. In this case what the other person says is not important, only proof of my civility in the conversation. The other party is never officially identified.

A recording of you speaking nice and civil only proves that you recorded yourself speaking nice and civil, nothing else. By itself it's pretty useless as a proof that you didn't do something, only that you did the recording. You could have had a separate phone conversation with this person where you were not civil and not nice, then called back and had a nice conversation which was then recorded. Or you could have just gotten off the phone from a nasty call and sit with your recorder and "fake" the recent call by just pretending to have that conversation over again while being nice and civil.

3. Somebody makes an accusation of me "flirting" or acting inappropriate during a call to my spouse. I have audio/video recording in my home/office for the purpose of security and it captures only my voice during a call. This call couldn't effectively be used in court but would be valuable to my spouse to demonstrate my behavior.

Why would you need to demonstrate your behavior to your spouse about a phone call you had with your spouse, they already were part of this conversation so they already know your behavior at the time.

[adjusterjack]

I hope that I have made my point with regards to my voice being the only one recorded. No audio of any kind from the other side. There are so many times that this would be helpful to show a timeline, make notes, affirm/deny allegations, etc. From what I can tell there is no clear answer or case law but I admit that I am not a trained legal professional.

Here's the "clear" answer.

Put a recorder on the desk or table or car seat so that only YOUR voice gets picked up.

Make sense?

[curiouscali]

I think you do run a risk of violating the statute if you do it. The way the statute is structured it is illegal for any person to using an electronic device to eavesdrop upon or record a “confidential communication” without the consent of all parties to the communication, whether the parties are in the same room or they are communicating by “a telegraph, telephone, or other device, except a radio.” Cal. Penal Code § 632. Thus, I think that if someone else were to record your half of the conversation by secretly placing an audio recorder in the room that would violate the statute as it is recording part of a confidential communication without the consent of all parties to the conversation. The fact that the other party could not be heard and was not recorded should not block you from complaining about the recording. That being the case, even if you are the one recording that conversation, it would still violate the statute because you are doing the same thing: recording part of a confidential communication without the consent of ALL parties involved. After all, the person on the other end might well carry on the conversation differently if he or she knew that any part of it was recorded as that might prompt different responses from you. It’s not just about recording what the other person says.

I found only one case that seems to raise this issue. In that case, a TV crew followed a team of police officers as they discovered a dead body. During the course of that investigation, the police identified the victim and one of the officers called the parents of the victim to tell them that their son was dead. The TV crew captured only the words spoken by the police officer; there were indistinct sounds recorded through the handset of the phone the officer was using but there was no device recording both sides of the conversation. The TV crew simply was recording what the officer was saying, with his consent but not the consent of the parents on the other end. The court concluded that it violated California’s wiretap statute:

Section 632, subdivision (c) provides: “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....” (Italics added.) Thus, if one party to the conversation has not consented to the recording, section 632 has been violated. (Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 928, 33 Cal.Rptr.2d 766.) The fact the actual words spoken by the parents may not be discerned does not preclude the viewer from recognizing the anguish in the response to the phone call.

We conclude that the videotape demonstrates a prima facie case of invasion of privacy by intrusion as well as violation of section 632. Therefore, the court erred in granting the section 425.16 motion on those causes of action.

Marich v. QRZ Media, Inc., 73 Cal. App. 4th 299, 86 Cal. Rptr. 2d 406, 420 (1999)(rehearing denied and case subsequently ordered depublished). The facts there are bit a different than what you propose in that something was heard and recorded from the other party, but the recording was simply a video of what the officer was doing, no different than you having a recorder sitting on your desk recording your side of the call and perhaps sometimes picking up some indistinct sound from the other end. In any event, the actual words spoken by the other side were not recorded nor was an attempt made to record them and yet the court still found that the recording would violate the statute. I would suggest you ask a California criminal defense lawyer about this issue and point out the Marich case in particular and see what the attorney says about your risk of possibly being convicted of this offense or being successfully sued for damages. Given the serious consequences of violating the statute — a fine of up to $2,500 and/or imprisonment in county jail or state prison for up to year — you want really sound advice before making those recordings.

Thank you for your response. I am going to finish reviewing the cases you mentioned. The most interesting aspect for me is that we are under constant surveillance by CCTV in private businesses and on public property where many millions of phone calls take place. Often, I assume, the CCTV records one side of the conversation unintentionally. Would this make the system operator liable? Your response was very helpful, unlike others. Thank you.

[Taxing Matters]

Here's the "clear" answer.

Put a recorder on the desk or table or car seat so that only YOUR voice gets picked up.

Make sense?

Under California law that may well violate the statute. Please read my prior response to see why.

The most interesting aspect for me is that we are under constant surveillance by CCTV in private businesses and on public property where many millions of phone calls take place. Often, I assume, the CCTV records one side of the conversation unintentionally. Would this make the system operator liable? Your response was very helpful, unlike others. Thank you.

Most CCTV systems used by businesses are video only and do not record audio for this very reason: audio may violate wiretap laws by recording (however inadvertently) conversations that would violate either federal or state wiretap laws.