The California eavesdropping statute, sometimes known colloquially is the “wiretapping” statute, is set forth in Penal Code Section 632. The first principle to understand is that California is a “two-party consent” state.
Many states in the union are one-party consent states, meaning that as long as one party to a conversation consents to recording, that recording is lawful even without the consent of the second party and sometimes even without their knowledge.
This is not the case in California where both parties to a conversation must consent to it being recorded or the recorded may face potential criminal liability.
Penal Code 632 broadly defines eavesdropping and a recording. Virtually any type of electronic technology which allows the listener to amplify or record a confidential communication between two or more parties will fall under under the wiretapping law.
Confidential communication is also broadly defined as any communication which by its circumstances indicates that the parties to the communication wished it to remain private will qualify.
The most common scenario where someone faces a Penal Code 632 prosecution are people who are one party to a communication and record them without the knowledge of the other person.
A closely related offense to eavesdropping is illegal wiretapping under California Penal Code 631.
Factors that Determine an Eavesdropping Offense
There are several important principles to consider when evaluating whether a given action gives rise to liability under Penal Code 632.
See CALCRIM 1809 - California Jury Instructions for recording of confidential information.
First is whether the defendant had any intent to eavesdrop on another's conversation.
There are instances in which a defendant is simply recording themselves, for instance, and happen to catch a portion of someone else's conversation inadvertently.
This is relatively common with recordings taken in public places. This type of incidental recording which is not intended by the defendant should not allow a conviction under Section 632.
The second consideration is whether the defendant used an electronic device to listen in on someone's conversation and/or make a recording. Section 632 does not criminalize all acts of eavesdropping.
If the defendant simply listened in on someone else's private conversation using their unaided ears, this conduct is not criminal under Section 632.
The third consideration is whether the conversation or interaction at issue is one that could reasonably be considered confidential. A confidential conversation is one in which any party to the conversation had an objectively reasonable expectation of privacy.
This certainly includes any conversations which occur within someone's home but also extends to a large category of conversations which occur in public.
It is important to note that only one of the parties to the conversation must possess a reasonable expectation of privacy, meaning it is no defense to show that the second party knew the conversation would likely be eavesdropped on or recorded if the first party maintained a reasonable expectation of privacy.
The final consideration is whether the defendant had the consent of all parties to the conversation to listen in or record. As we noted at the outset, California is a “two-party consent” state.
This is actually a misnomer in that legally California requires all parties to consent, regardless of the number.
Combining these principles, we can state the elements of a Section 632 offense: If the defendant intentionally uses an electronic device to eavesdrop or record a confidential communication without the consent of all parties to the communication, they are guilty of violating Section 632's prohibition against eavesdropping.
Penalties for a PC 632 Eavesdropping Conviction
A Section 632 prosecution can proceed as either a felony or a misdemeanor under California law. This is known as a “wobbler.”
As a misdemeanor, Section 632 can be punished by up to one year in county jail and/or a fine. As a felony, Section 632 can be punished by 16 months, two years, or three years in California state prison and/or a fine.
Section 632 also has important implications for introduction of evidence in court proceedings. In general, a recording made in violation of Section 632 is inadmissible in court under the evidence code.
However, there are important exceptions. Law enforcement may lawfully record communications without violating Section 632 and those recordings may be used as evidence.
Private citizens may sometimes also lawfully record and introduce those recordings in evidence.
In a case where the private citizen is one of the parties to the communication, he or she may lawfully record to gather evidence of the other party's attempt to commit certain categories of crimes such as bribery, extortion, kidnapping, or crimes of violence such as murder.
Other related California offenses for PC 632 eavesdropping include Penal Code 647i, peeking while loitering, and Penal Code 647j, criminal invasion of privacy.
Defending Eavesdropping Charges
Defenses to a Section 632 charge will naturally focus on undermining one of the four elements of the crime.
The defendant can claim they lacked intent to capture the communication, the communication was not confidential, they did not employ and electronic device, or they obtained consent to eavesdrop or record from all parties.
If you, or someone you know, is under investigation for or has been charged with eavesdropping in violation of California Penal Code Section 632, contact our experienced Los Angeles criminal defense attorneys today for an initial consultation.
We can advise you of the best steps to take to achieve the best possible outcome in your case. Our practice is focused on aggressively advocating for our clients and ensuring their rights are protected.
Eisner Gorin LLP is a top-ranked criminal defense law firm with a track record of success. Contact us for a consultation at (877) 781-1570.