Law / United States / 
California
California Invasion of Privacy Act, Recording and Interception of Communications
Cal. Penal Code §§ 631, 632, 632.7, 633.5, 637.2
In force.
An interception and recording consent rule binding public and private bodies.
- Obligation class
- Consent
What it requires
- Do not tap or make an unauthorized connection with a telephone or telegraph wire, line, cable, or internal telephonic communication system, or learn or try to learn the contents of a message while it is in transit, without the consent of all parties or other authorization.
- Get the consent of every party before using an electronic amplifying or recording device to eavesdrop on or record a confidential communication, whether the parties are in each other's presence or on a call; a communication is confidential where a party has an objectively reasonable expectation it is not being overheard or recorded, and disclosing that you are listening or recording, so that every party knows it, takes the recording outside this duty.
- Get the consent of every party before intercepting or recording a communication transmitted between a cellular or cordless telephone and another telephone; this reaches you even if you are a party to the call yourself, not only a third party who intercepts it.
- Section 633.5 lets a party record without the others' consent only where the party reasonably believes the recording will produce evidence of extortion, kidnapping, bribery, a violent felony (including human trafficking), a violation of Section 653m, or domestic violence; it is not a business or compliance exception, so get every party's consent for any other recording.
- These duties do not reach a public utility or telephone company, or its officers, employees, or agents, acting to construct, maintain, conduct, or operate its own communications services and facilities; this exemption does not reach a general business messaging its own customers.
- This all-party consent rule reaches a business's routine recording, from an office outside California, of calls with a party in California; the California Supreme Court has not decided how its choice-of-law analysis applies to an isolated personal call recorded from outside California, or to a recording made because of a reasonable, individualized belief that a caller is engaged in wrongdoing.
These lines are LexLint's reading of the law's text. Also read by: Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183 (recorded ).
In the frameworks
- NIST Privacy Framework
- CT.PO-P1Policies, processes, and procedures for authorizing data processing (e.g., organizational decisions, individual consent), revoking authorizations, and maintaining authorizations are established and in place.
Our reading of where this law's duties sit in each framework. It never says that running a control meets the law. How we read a framework against the law
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
A first violation of section 631 or section 632.7 is punishable by a fine of up to $2,500, and a first violation of section 632 by a fine of up to $2,500 per violation, in each case with imprisonment in a county jail for up to one year, or both; for section 631 the imprisonment may instead be under subdivision (h) of Penal Code section 1170, and for sections 632 and 632.7 it may instead be in state prison. A person previously convicted of one of these sections, or of section 632.5, 632.6 or 636, is punishable by a fine of up to $10,000 (per violation under section 632), the same terms of imprisonment, or both.
Statutory damages
Section 637.2(a) awards the greater of $5,000 per violation or three times actual damages, per violation rather than per person, with no need to plead or prove actual damages.
- As of
- Currency
- USD
- Per person minimum
- 5,000
Who enforces it
Enforcement body
Private civil action under Penal Code section 637.2; a violation of section 631, 632, or 632.7 is separately prosecuted as a crime.
Settledness
Smith v. LoanMe held that section 632.7 reaches a party to the call, not only a third-party eavesdropper, and remanded to the Court of Appeal the question whether an audible warning tone alone gave the plaintiff adequate notice of the recording.
- As of
- Case link
- https://www.courts.ca.gov/opinions/documents/S260391.PDF
- Case citation
- Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183
- Open questions
- Does a warning tone alone, without a verbal disclosure that the call is being recorded, give the called party adequate notice to establish consent under section 632.7 when the person continues the conversation after hearing it?
What this law does
Section 631 makes it a crime to tap or make an unauthorized connection with a telephone or telegraph wire, line, cable, or internal telephonic communication system, or to learn or try to learn the contents of a message while it is in transit, without the consent of all parties or other authorization.
Section 632 separately makes it a crime to use an electronic amplifying or recording device to eavesdrop on or record a confidential communication, whether conducted in person or by telephone, without the consent of every party, and the section excludes a person known by every party to be listening in or recording. A communication is confidential where a party has an objectively reasonable expectation that it is not being overheard or recorded.
Section 632.7 separately makes it a crime to intercept or record, without the consent of all parties, a communication transmitted between a cellular or cordless telephone and another telephone. Enacted in 1992, it reaches every such communication regardless of whether it is confidential.
The California Supreme Court has held that section 632.7 applies to a party to the call and not only to a third-party eavesdropper, remanding the further question whether an audible warning tone alone gave the plaintiff adequate notice to establish consent.
Section 633.5 lifts the consent requirement of sections 631, 632, and 632.7 only where a party reasonably believes the recording will produce evidence of extortion, kidnapping, bribery, a violent felony including human trafficking, a violation of Section 653m, or domestic violence, and creates no general business-purpose exception.
Sections 631 and 632.7 also exempt a public utility or telephone company from these prohibitions where the acts are for the purpose of constructing, maintaining, conducting, or operating its own communications services and facilities. A 2022 amendment, SB 1272, extended this exemption, previously limited to a public utility, to a telephone company as well, without changing either section's fine amounts.
Section 637.2 gives a person injured by a violation of this chapter a civil action for the greater of $5,000 per violation or three times actual damages, with no need to prove actual loss, plus injunctive relief. The California Supreme Court has held that section 632 applies when a confidential communication takes place in part in California and in part in another state.
It applied California law to the alleged secret recording of calls by a brokerage firm's Georgia branch with its California clients. The court allowed the claim for an injunction to go forward. It relieved the firm of liability for damages for its past recording of conversations. A first violation of section 631 is punishable by a fine of up to $2,500, imprisonment in county jail for up to one year or under subdivision (h) of Penal Code section 1170, or both a fine and imprisonment.
A first violation of section 632 is punishable by a fine of up to $2,500 per violation, imprisonment in county jail for up to one year or in state prison, or both. A first violation of section 632.7 is punishable by a fine of up to $2,500, imprisonment in county jail for up to one year or in state prison, or both. After a prior conviction under section 631, 632, 632.5, 632.6, 632.7 or 636 the fine rises to $10,000, with the same terms of imprisonment. The sections this entry groups came into force on different days.
How courts have read itPremium data
Our analysis of this law draws on 6 court rulings.
What each ruling held, what it means for an app, and whether it still stands are premium data, in the Plus, Pro and Enterprise plans.
When LexLint raises it
When your app profile says your app records calls, records text chat, processes voice recordings or deploys a chatbot.
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