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One-party consent not enough when taping calls

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NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Privacy   ·   July 17, 2006 One-party consent not…

NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Privacy   ·   July 17, 2006

One-party consent not enough when taping calls

  • Journalists cannot secretly record phone conversations with California sources, the state high court ruled last week.

July 17, 2006  ·   Callers from out-of-state may not secretly record telephone conversations with California residents — even if the practice is legal in the caller’s state — because the California law was designed to protect the state’s residents from just such an occurrence, the state’s supreme court ruled last week.

In settling a complex conflict-of-law question, the California Supreme Court ruled that the state’s decades-old law requiring all parties’ consent in order to record a telephone conversation applies even if the call originates from a state which requires only one-party consent to record.

“The biggest change is that there was an open question about whether someone from a state like New York — a one-party consent state — could rely on their own state law when calling California,” said media attorney Kelli Sager, who was not involved in the case but has litigated other privacy cases in the state. “So that’s what this decision really clears up, no matter where you’re calling from if you’re calling a California resident in California, you should assume they’re going to apply the California Penal Code.”

The California invasion of privacy law at issue was enacted nearly 40 years ago to protect the privacy of telephone conversations for California residents.

“The legislatively prescribed purpose of the 1967 invasion of privacy statute, however, is ‘to protect the privacy of the people of this state,'” wrote Chief Justice Ronald M. George for the unanimous court. “That purpose certainly supports application of the statute in a setting in which a person outside California records, without the Californian’s knowledge or consent, a telephone conversation of a California resident who is within California.”

The ruling came after Salomon Smith Barney (SSB), a national brokerage firm with offices in Georgia, was sued for recording its telephone conversations with its California customers. The trial court agreed with SSB that Georgia law covered the case and dismissed the claim. A Court of Appeal affirmed the judgment and the plaintiffs appealed to the Supreme Court.

The suit highlighted a clash between state laws: California requires the consent of all parties while Georgia requires only one-party consent. While the lower courts found that Georgia law applied, the California Supreme Court applied the state’s choice-of-law rules and found that California had a compelling interest in applying the privacy law to its citizens in a case such as this.

“A person who secretly and intentionally records such a conversation from outside the state effectively acts within California in the same way a person effectively acts within the state by, for example, intentionally shooting a person in California from across the California-Nevada border,” George wrote. “Because there can be no question but that the principal purpose of section 632 [the privacy law] is to protect the privacy of confidential communications of California residents while they are in California, we believe it is clear that section 632 was intended, and reasonably must be interpreted, to apply in this setting.”

Although the case and ruling did not involve the news media, the court’s decision clears up a fuzzy area of law for journalists who call California.

“It clarifies something we’ve always been cautious about,” Sager said. “Not all journalists have been sure what the courts would do if they’re in a state that doesn’t have this kind of law. They wondered if they should be able to rely on their own state law — they don’t have this comfort anymore.”

In addition, Sager believes the decision could help clarify the issue nationally, especially for calls into other states with all-party consent laws.

“A lot of states look to California for interpreting the extent of protections like this,” Sager said. “Although each state’s law on recording is slightly different it wouldn’t surprise me if other states followed California’s lead saying you called our citizens, you’re stuck with our own law.”

(Kearney v. Salomon Smith Barney)CM

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