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Soundless videotaping not a recording under wiretap statute

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  1. Libel and Privacy

    NMU         CALIFORNIA         Privacy         Nov 28, 2000    

Soundless videotaping not a recording under wiretap statute

  • A state appeals court overturned a conviction by emphasizing the wiretapping statute prohibits recording the contents of audible or symbol-based communications.

The still, soundless images taken by a hidden video camera did not constitute recording of a confidential communication, a California appellate court unanimously ruled on Nov. 27. The decision reversed the conviction of a school superintendent.

Craig Boyd Drennan, the superintendent of the Modoc Unified School District, was convicted of violating the state eavesdropping statute when he instructed a maintenance worker to have a video camera installed in a smoke detector in the office of a high school principal. The video camera recorded a still image every three seconds, without sound, of the area around the principal’s desk, computer, file cabinet, credenza and bookcase.

Drennan, who did not inform the principal of the camera, said he used the taping from December 1998 to March 1999 to determine if someone was breaking in to the office.

A jury convicted Drennan of violating section 632(a) of the state penal code, which prohibits the recording of confidential communications. Drennan received a three-year felony probation sentence on the condition he first serve 10 days in the county jail and pay $7,010 in fines.

The Third District Court of Appeals in Sacramento ruled that the statute does not establish a general privacy right. The statute specifically prohibits recording of confidential communications. The court held that the legislative intent of “communications” was clear: it was meant “to protect only sound-based or symbol-based communications.” The court supported its view of the statute’s meaning by gleaning the legislative history.

“These documents confirm what the language of section 632 states, that the Legislature intended to prohibit the recording of oral or telegraphic communications between two or more persons, not the photographing of two or more people carrying on a conversation,” the court wrote. “Such a video recording does not capture the communication itself, only evidence that a communication has occurred.”

The court suggested prosecutors could have charged Drennan with violating section 647(k), which prohibits invasions of personal privacy by visual enhancements such as cameras.

(California v. Drennan) DB


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