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
As of .
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 can reach a call you record from outside California, so long as the other party to the call is located in California.
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
A first violation of section 631, 632, or 632.7 is punishable by a fine of up to $2,500 per violation, imprisonment in a county jail for up to one year, or both; a person previously convicted of one of these sections is punishable by a fine of up to $10,000 per violation, up to a year in county jail, 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 misdemeanor.
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 applied this all-party consent rule to a telephone call even where the recording was made from an office outside California, so long as the other party was in California.
A first violation of section 631, 632, or 632.7 is a misdemeanor punishable by a fine of up to $2,500, imprisonment in county jail for up to a year, or both, rising to a fine of up to $10,000 for a person previously convicted of one of these sections.
When LexLint raises it
When your app profile says your app records conversations, processes voice recordings or deploys a chatbot.