August 1, 2012

Summary of statute(s): In California, all parties to any confidential conversation must give their consent to be recorded. This applies whether the recording is done face-to-face or intercepted through some electronic communication such as a cell phone call or series of e-mail or text messages. 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.

In-person conversations: All parties to any confidential communication must give permission to be recorded, according to California’s eavesdropping law. Cal. Penal Code § 632. The statute, however, specifically excludes from its application any conversations made in public places, government proceedings, or in circumstances where the participants of the conversation 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 photographic images or sound recordings of people in “personal or familial activity.” Cal. Civil Code § 1708.8. Committing an assault or falsely imprisoning subjects of a photo or sound recording can also lead to violations of the statute. Cal. Civil Code § 1708.8(c). Similarly, the state’s vehicle code was recently amended to include 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 impressions of another person for a commercial purpose.” Cal. Veh. Code § 40008.

Electronic communications: The state’s wiretapping law makes it a crime to intentionally tap or make any unauthorized connection to intercept telephone conversations or to read the contents of any messages without the consent of all parties involved in such communications. See Cal. Penal Code §§ 631, -7.2.

Hidden cameras: The state’s disorderly conduct statute prohibits the use of “a concealed camcorder, motion picture camera, or photographic camera of any type” to secretly record a person while in a dressing room, tanning booth or while in any area where the person has a reasonable expectation of privacy. Cal. Penal Code § 647(j). Two appellate courts have come to opposite conclusions as to whether using a hidden camera in a private place also violates the state’s eavesdropping statute. See California v. Gibbons, 215 Cal. App. 3d 1204 (Cal. Ct. App. 1989)(a video recorder can be considered a recording device under the statute); People v. Drennan, 84 Cal. App. 4th 1349 (Cal. Ct. App. 2000)(eavesdropping statute protects only sound-based or symbol-based communication).

Criminal penalties: A first offense of eavesdropping or wiretapping is punishable by a fine of up to $2,500 or imprisonment for no more than one year. Cal. Penal Code §§ 631, 632. Subsequent offenses carry a maximum fine of $10,000 and jail sentence of up to one year. Disclosing the contents of intercepted telephone conversations could lead to fines of up to $5,000 and one year in jail. Cal. Penal Code § 637. Violation of the state’s hidden camera statute is a misdemeanor punishable by up to a year in jail and fines of up to $1,000. Cal. Penal Code § 19. The state’s vehicle code provides for penalties of up to a year in jail and fines of up to $2,500. Cal. Veh. Code § 40008(a).

Civil suits: Anyone injured by a violation of the laws against disclosure of telephonic messages can recover civil damages of $5,000 or three times 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 state’s civil code provides for fines of up to $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).

Disclosing recordings: The state prohibits the intentional disclosure of the contents of private communications obtained by wiretapping. Cal. Penal Code § 631. Those who publish, sell or otherwise transmit images or sound recordings while knowingly trespassing on private property are subject to fines. Cal. Civil Code § 1708.8(f).