What’s the California Invasion of Privacy Act?

The California Invasion of Privacy Act is a unique law in that it protects phone conversations from being recorded without the consent of all parties to the phone call – and provides for not only criminal penalties, but also a civil remedy with statutory damages.  Not many criminal laws provide so much.  

Criminal penalties include custody time and / or court fines.  The crime is a “wobbler,” so it can be charged as a felony or a misdemeanor, depending upon the case facts and defendant’s criminal history.  If convicted as a misdemeanor, defendant faces up to one year in county jail and a fine up to $2,500.  If convicted of the crime as a felony, defendant faces up to three years in state prison (to be served in county jail if the person is not a registered sex offender) and a fine up to $2,500.

If the person has a prior conviction for illegal wiretapping, the fine can be up to $10,000.

To understand this law, provided at Penal Code § 630, et seq., it is good to remember that California is a “two-party” consent state, meaning both parties to a typical phone call (with just two people involved) must agree to having the conversation recorded.  Therefore, any secretive wiretap (recording) of the call without one party’s knowledge is a violation of the other party’s privacy and this is protected vigorously in California.  

It is also a crime to assist or help another person violate this law or to use information gained through such an illegal recording, even if the person was not the party making the illegal recording.

Wiretapping is simply recording a conversation by electronic or other means.  It is an invasion of privacy unless consented to by both parties.  

We see this violation quite often in the context of domestic violence cases that often also involve criminal threats and violations of civil restraining orders and / or criminal protective orders.  One party will record a conversation using their cell phone and gleefully tell us “I got it all recorded, don’t worry.  Do you want to hear it?”  

We then ask the potential client if the other party agreed to such a recording and the person will pause before saying “no.”  We ask this question because under Penal Code § 631(c), “[e]xcept as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.”

To recover money (compensation) after a wiretap, the victim (plaintiff of a civil lawsuit) must show that:

This civil remedy is provided for at Penal Code § 637.2.  The plaintiff can recover up to three times the amount of damage suffered or a statutory amount of $5,000, whichever is greater.

The law does not apply to law enforcement (if a judge orders this under Penal Code § 633 to help with a criminal investigation), correctional facilities, which record all calls from those in custody, or telephone utility companies.  

However, for even those in custody in a jail or prison, it is a violation of Penal Code § 636 for the correctional facility to record conversations between the person in custody and his or her attorney, religious advisor and / or physician.  Calls from inmates otherwise may be recorded and reviewed by the prosecuting attorney and the jail or prison to monitor conversations about escape, committing a crime inside the facility, witness intimidation or tampering (including bribery) and admissions to the crime.

The law is primarily designed to not only protect one’s reasonable expectation of privacy (and the attorney client privilege), but to also prevent corporate espionage, wherein one company will wiretap the phone lines of a competitor to learn its trade secrets and to thereby gain more business by emulating their business methods.  In this way, the law is meant to foster clean competition and a level playing field in business.