Recording Calls Without Consent Still Illegal, California Supreme Court Rules


In a ruling Thursday, the California Supreme Court clarified that California law requires consent from both parties before a call can be recorded.

(Pixabay image via Courthouse News)

SAN FRANCISCO (CN) — California’s prohibition on secretly recording phone calls applies to both parties on the call and not just third-party eavesdroppers, the California Supreme Court ruled Thursday

The court’s unanimous decision reverses the Fourth Appellate District’s opposite interpretation from 2019 that the law applies only to nonparties and does not forbid those on the call from recording each other without consent.
California’s penal code Section 632.7 makes it a crime to record or intercept a phone call “without the consent of all parties.”

This was the basis for a 2016 lawsuit by Jeremiah Smith, who claimed the loan provider LoanMe Inc. recorded him without his consent during an 18-second call in violation of Section 632.7.

Writing for the unanimous court, Chief Justice Tani Cantil-Sakauye said that the statute can be naturally read to mean that it prohibits both parties and nonparties from making non-consensual recordings, though it “conceivably could support the Court of Appeal’s interpretation as well.”

But she added that an examination of the Legislature’s intent would overturn that alternative reading, noting that the court of appeal’s decision in Smith “was the first published opinion by a California appellate court to have specifically addressed whether section 632.7 applies to the intentional recording of a communication by a party” and that it “departs from the majority view of the federal district courts that have considered the same issue.”

Cantil-Sakauye noted the high court’s 2002 decision in Flanagan v. Flanagan discusses Section 632.7 extensively in settling a split on what constitutes a “confidential communication” to be protected under the law. 

The court held that  “a conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded,” underscoring that such an interpretation is consistent with the protections offered by Section 632.7, as well as other parts of the statute that “protect against interception or recording of any communication,” Cantil Sakuaye wrote.

Quoting Flanagan, she added, “When the Legislature determined that there was no practical means of protecting cordless and cellular phone conversations from accidental eavesdropping, it chose to protect all such conversations from malicious or intentional eavesdropping or recording, rather than protecting only conversations where a party wanted to keep the content secret.” 

Cantil-Sakauye said the legislative history is also consistent with the high court’s reading, referring to committee analysis of Assembly Bill 2465, which makes clear that lawmakers intended to close a loophole that left cellphone and cordless phone communications vulnerable to recording.

“The apparent intent was not limited to protecting covered communications from interlopers acting without malice,” she wrote.

The court remanded the case back to the court of appeal for further proceedings.

Smith is represented by attorneys Adrian Bacon and Tom Wheeler with the Law Offices of Todd Friedman in Irvine California. 

Reached by phone on Friday, Friedman said it is unusual for the entire California Supreme Court bench to vote to hear a case, which indicated to him that the justices were eager to clarify the scope of section 632.7. 

“People should have the expectation that their privacy is being protected,” he said. “It’s a big deal.”

Attorney Jared Toffer with Finlayson Toffer Roosevelt & Lilly LLP who represented LoanMe, did not immediately respond to an email seeking comment Thursday.

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