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Recording a phone call without the other party’s consent is a crime (Penal Code section 632.7(a)

Smith v. LoanMe, Inc. (Cal., Apr. 1, 2021, No. S260391) 2021 WL 1217873, at *1

Summary: Under Penal Code section 632.7(a), it is a crime when a person “without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between” a cellular or cordless telephone and another telephone.

A violation of section 632.7 also can be pursued in a civil lawsuit.

The California Supreme Court decided whether section 632.7 applies to the parties to a communication, prohibiting them from recording a covered communication without the consent of all participants, or whether the section is concerned only with recording by nonparties to the conversation.

The Court of Appeal had concluded that section 632.7 applies only to nonparties and does not forbid a party to a phone call transmitted to or from a cellular or cordless telephone from recording the conversation without the consent of the other party or parties. The Supreme Court held that that section 632.7 applies to parties as well as nonparties. This interpretation is consistent with the relevant legislative history. The Supreme Court reversed the judgment below and remanded the matter to the Court of Appeal for further proceedings consistent with their opinion.

The Language of Section 632.7 Favors an Interpretation of the Section as Applicable to Parties as Well as Nonparties

The  Supreme Court focused on language of section 632.7(a), and its phrasing, “[e]very person who, without the consent of all parties to a communication, intercepts or receives and intentionally records … a communication ….”

The Court’s  interpretation of section 632.7(a) would read its consent language as directed at the recording component of the offense, with the section’s “intercepts or receives” phrasing specifying the circumstances in which a person may become privy to a covered communication. Under this interpretation of section 632.7(a), there is no doubt regarding its applicability to parties as well as nonparties to a communication. Although parties might  be regarded as consenting to the receipt of their communications by other parties to a call, this acquiescence would not, by itself, necessarily convey their consent to having these communications recorded.

The Legislative History and Background of Section 632.7 Are Consistent with Its Application to Parties

The legislative history of Assembly Bill 2465 is consistent with a reading of section 632.7 as announcing a general prohibition against the intentional recording of a covered communication without the consent of all parties, regardless of whether the recording is performed by a party to the communication or by someone else.

Interpreting Section 632.7 as Applicable to Recording by Parties Better Promotes the Statutory Scheme’s Goal of Protecting Privacy in Communications

The Court’s interpretation is consistent with declarations within the Invasion of Privacy Act, the Legislature’s rationales for shielding certain kinds of communications from recording.

“In enacting [the Invasion of Privacy Act], the Legislature declared in broad terms its intent ‘to protect the right of privacy of the people of this state’ from what it perceived as ‘a serious threat to the free exercise of personal liberties [that] cannot be tolerated in a free and civilized society.’ (Pen. Code, § 630.)

“In enacting [the Invasion of Privacy Act], the Legislature declared in broad terms its intent ‘to protect the right of privacy of the people of this state’ from what it perceived as ‘a serious threat to the free exercise of personal liberties [that] cannot be tolerated in a free and civilized society.’ (Pen. Code, § 630.) This philosophy is central to virtually all the decisions construing the Privacy Act.” (Ribas v. Clark (1985) 38 Cal.3d 355, 359, 212 Cal.Rptr. 143, 696 P.2d 637 (Ribas).) The Court observed in Flanagan, supra, 27 Cal.4th 766, 117 Cal.Rptr.2d 574, 41 P.3d 575, in subsequently enacting the Cellular Radio Telephone Privacy Act of 1985, the Legislature found and declared, “ ‘the advent of widespread use of cellular radio telephone technology means that persons will be conversing over a network which cannot guarantee privacy in the same way that it is guaranteed over landline systems.’ ” (Flanagan, at pp. 775–776, 117 Cal.Rptr.2d 574, 41 P.3d 575, quoting Stats. 1985, ch. 909, § 2, p. 2900.) The Legislature also declared in the 1985 law that “parties to a cellular radio telephone communication have a right of privacy in that communication.” (Stats. 1985, ch. 909, § 2, p. 2900.) The Legislature made similar findings and declarations when, five years later, it retitled the 1985 law the Cordless and Cellular Radio Telephone Privacy Act and protected communications involving cordless phones from malicious interception and receipt. (Stats. 1990, ch. 696, §§ 1, 2, pp. 3267, 3268.)

The Court concluded that section 632.7 prohibits parties as well as nonparties from intentionally recording a communication transmitted between a cellular or cordless phone and another device without the consent of all parties to the communication.

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