Reporter's Recording Guide
Last updated August 2021Compare
In California, all parties to any confidential conversation must give their consent to be recorded. For calls occurring over cellular or cordless phones, all parties must consent before a person can record, regardless of confidentiality.
Both civil and criminal penalties are available to victims of illegal recordings.
Further, the state’s so-called “anti-paparazzi” legislation sets fines for, among other things, trespassing on private property with the intent of capturing photos. The state’s vehicle code similarly penalizes those who interfere with drivers of vehicles in pursuit of images or sound recordings.Compare
All parties to any confidential communication must give permission to be recorded, according to California’s eavesdropping law. Cal. Penal Code § 632(a). The law, however, specifically excludes from its application any conversations occurring in public places or government proceedings open to the public, or where the participants could reasonably expect to be overheard or recorded. Cal. Penal Code § 632(c).
Additionally, California’s so-called “anti-paparazzi” law prohibits trespassing with the intent of capturing photos or sound recordings of people in “private, personal, or familial activity.” Cal. Civil Code § 1708.8. Using a device to capture such photos or recordings — that would have otherwise required a trespass — is prohibited as well. Id. Committing an assault or falsely imprisoning subjects of a photo or sound recording can also lead to violations of the law. Cal. Civil Code § 1708.8(c).
Similarly, the state’s vehicle code includes penalties for anyone who interferes with the driver of a vehicle, follows too closely or drives recklessly “with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose.” Cal. Veh. Code § 40008.Compare
Telephone and electronic communications
California’s eavesdropping law requires the consent of all parties to record a confidential communication, including those conducted by “telephone, or other device, except a radio.” Cal. Penal Code § 632(a). The law, however, specifically excludes from its application any conversations occurring in public places or government proceedings open to the public, or where the participants could reasonably expect to be overheard or recorded. Cal. Penal Code § 632(c).
Some California courts have assumed that internet-based communications, including emails, are covered by the law, but the courts have held that those communications are presumptively not confidential unless specific facts overcome that presumption. See Revitch v. New Moosejaw, LLC, No. 18-CV-06827-VC, 2019 WL 5485330, at *3 (N.D. Cal. Oct. 23, 2019) (listing cases); Campbell v. Facebook Inc., 77 F. Supp. 3d 836, 849 (N.D. Cal. 2014) (emails and internet chats).
The eavesdropping law has a separate provision that applies regardless of confidentiality to calls that involve at least one cellphone or cordless phone, as opposed to calls exclusively through landline phones. Cal. Penal Code § 632.7. The California Supreme Court has held that this separate provision requires participants, as well as third-party eavesdroppers, to obtain consent from everyone before recording. See Smith v. LoanMe, Inc., No. S260391 (Cal. Apr. 1, 2021).
A California appellate court has held that even a "one-way recording" of a telephone conversation — when the voice of the other party is not audible — could violate the eavesdropping law (including the provision that applies to cellphone or cordless phone calls) if the person recording the call has not obtained consent from all participants. Gruber v. Yelp Inc., 2020 WL 5939779, at *10 (Cal. Ct. App. Oct. 7, 2020).
Additionally, the state’s wiretap law makes it a crime for a third party to intentionally tap or make any unauthorized connection to telephone conversations or to read the contents of any text messages or emails while the messages are in transit over the telephone wire without the consent of all parties involved. Cal. Penal Code § 631.Compare
The state’s disorderly conduct law prohibits the use of “a concealed camcorder, motion picture camera, or photographic camera of any type” to secretly record a person while in a rest room, dressing room, tanning booth or while in any area where the person has a reasonable expectation of privacy. Cal. Penal Code § 647(j)(3).
Courts have found that hidden cameras that record sound can also be used as recording devices in violation of the state’s eavesdropping law, but appellate courts disagree as to whether that law can be violated when the camera does not record sound. See People v. Gibbons, 215 Cal. App. 3d 1204 (Cal. Ct. App. 1989) (finding that the eavesdropping law also protects physical communication, such as sexual intercourse, regardless of whether sound was recorded); People v. Drennan, 84 Cal. App. 4th 1349 (Cal. Ct. App. 2000) (holding that the eavesdropping law protects only sound-based or symbol-based communication, and thus video recordings without sound do not violate the law).
Additionally, California’s so-called “anti-paparazzi” law prohibits trespassing with the intent of capturing photographic images or sound recordings of people in “private, personal, or familial activity.” Cal. Civil Code § 1708.8. Using a device to capture such photos or recordings — that would have otherwise required a trespass — is prohibited as well. Id.Compare
A first offense of eavesdropping or wiretapping is punishable by a fine of up to $2,500 or imprisonment for up to one year. Cal. Penal Code §§ 631, 632. Subsequent offenses carry a maximum fine of $10,000 and jail sentence of up to one year. Id.
Disclosing the contents of recorded or overheard telephone conversations could lead to fines of up to $5,000 and one year in jail, but only if the person making the disclosure was not a party to the conversation. Cal. Penal Code § 637. The law prohibiting disclosure of telephone conversations does not apply to people who are parties to the conversation. Id.
Violation of the state’s hidden camera law is a misdemeanor punishable by up to six months in jail and a fine of up to $1,000. Cal. Penal Code § 19. Subsequent offenses carry a maximum $2,000 fine and up to one year in jail. Cal. Penal Code § 647(l).
The state’s vehicle code provides for penalties of up to six months in jail and fines of up to $2,500. Cal. Veh. Code § 40008(a).
The anti-paparazzi law is a civil statute that does not have any criminal penalties.Compare
Under the state’s eavesdropping and wiretap laws, anyone injured by an illegally recorded or disclosed in-person or telephone conversation can recover civil damages of $5,000 or three times the actual damages, whichever is greater. Cal. Penal Code § 637.2. The court may also impose injunctions preventing the use of illegally obtained information. Cal. Penal Code § 637.2(b).
The anti-paparazzi law provides for fines of between $5,000 and $50,000, three times the amount of actual or special damages, and punitive damages for committing an assault or trespassing to capture a visual image or sound recording. Cal. Civil Code § 1708.8(d).Compare
California prohibits the intentional disclosure of the contents of (i) private telephone conversations obtained in violation of the wiretap law or (ii) any phone conversation by someone not a party to the conversation without the permission of the parties. Cal. Penal Code §§ 631, 637.
In addition, those who publish, sell or otherwise transmit images or sound recordings they know were made in violation of the “anti-paparazzi” law are subject to fines, but only in the first transaction after the recordings were made. Cal. Civil Code § 1708.8(f). Following that first transaction, future disclosures, publications or sales of the recordings are not illegal. Id.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Ninth Circuit, which includes California, has held that there is a First Amendment right to record matters of public interest in public places, which “includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); see also Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).Compare