Recording a Phone Conversation is Likely Illegal in California, But....

Recording a telephone conversation without the other party(ies)'s consent is likely a violation of the Penal Code. See California Penal Code Section 632 et seq.

Under California law, recording a conversation without consent carries with it potential monetary penalties and imprisonment.

Additionally, a person "injured" by the recording can bring a civil action to recover, the greater of, $5,000.00 per violation (recording), or three times actual damages, if any, suffered. Notably, there is not a prerequisite showing that a person actually suffered actual damages in order to recover the $5,000.00 penalty.

However, not all recordings are illegal, for example, a recording to obtain evidence related to a commision by one of the parties to the communication a crime like extortion, kidnapping or bribery. Calif. Civil Code Section 633.5. Also, while there is a general prohibition on the use of illegal recordings at a court proceeding, California has created certain exceptions to this rule (for example, potentially for impeachment purposes, or to use to discover other admissible evidence).

One other general point to consider is that not all states treat surreptitious recordings the same as California. In New York, for example, only one party's consent is needed to record a conversation.

The question arises whether an unauthorized recording with an out-of-state person is illegal. Here in California it is. The case, Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal 4th 95 dealt with a situation where the conversations between California residents/clients were recorded by a company's Georgia office without their consent. In Georgia, that type of recording was lawful. The Californians sued for invasion of privacy. The California Cour of Appeal determined that even though the recording was lawful in Georgia, that application of section 630 et seq. was proper.

Many times in business, real property or any other transaction, for whatever reason, one party might feel compelled to secretly record a conversation. Even though California law provides for potentially substantial recoverable civil penalties in favor of the victim, it should be noted that discrete exceptions in the law exist that might allow the introduction of the statements into evidence despite their illegal origin. Conversely, though a party may be willing to risk that civil penalty and secretly record a conversation to develop evidence, generally such evidence may likely be subject to exclusion.

Whether you are a victim of a secret recording or you have secretly recorded a conversation in order to develop some kind of claim of your own despite the potential for a counter-claim against you, good investigation, analysis, law and motion, and discovery by an experienced attorney can aid you in determining what the legal ramifications might be of a potential illegal recording.