Is it illegal to record someone? (2019 legal guide to call recording laws)

Oct 7, 2019 | Call Recording, Consumer Protection

Crosner Legal represents clients facing a wide range of legal disputes, including consumer protection lawsuits on behalf of individuals who have been illegally recorded by a company. This article goes into depth about your rights are as an individual when you are recorded without knowledge or consent by others, the current legislation of recording conversations, and penalties applicable for obtaining recorded conversations. For further information or clarification, give the team at Crosner Legal a call today or you may submit your inquiry using the confidential online form.

It’s no secret – technology continues to advance and progress on a rapid scale. With continuous progression and readily available technology, such as smart phones, modern technology gives the consumer the ability to document and record conversations with ease and simplicity. 

Thomas Edison was the first to invent the phonograph in 1877, which was the first device known to record a human voice. Since that time, the technology has progressed to today’s digital era with consumers utilizing voice recording devices for criminal investigations, security, to memorialize agreements, and even blackmailing. While it can’t be argued that voice recording devices possess a multitude of advantages for both law enforcement, investigations and individuals – the real question to consider is whether it is actually legal?

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Is it illegal to record someone?

The laws around voice recording are complex, and in many situations requires a case by case analysis. Therefore, you generally need to know the facts surrounding the recording in order to navigate the legalities of whether it was legal.

Overall, it is not illegal to record a conversation so long as you record it with consent of all parties involved. However, it is illegal in several states, including California, to record a conversation when you do not obtain consent of the other party and they are not aware that you are recording them.

Is it illegal to record someone in public?

The ins and outs of recording laws could fill a manual, and sometimes the rules can fall into shades of grey. Recording someone in public can be legal or illegal – it all depends on the situation and reasonability. Notably, if you do not have the other person’s consent your recording will not be legal – however this applies only to those who expect a reasonable amount of privacy while holding their conversations. Therefore, if an individual has not provided consent and is not aware, and reasonably should not have been aware, that they were being recorded, then the recording shall be deemed unlawful.

To the contrary, below are some examples of situations where consent may not be necessary based on the circumstances:

  1. If the individual is yelling, shouting or speaking in a public setting without holding concern of being overhead, and there is a probability that he or she will be overhead
  2. If an individual is holding a presentation or speaking at a hearing to a large group of people
  3. If an individual is performing, singing or dancing in front of crowds
  4. You have the right to record authorities, police and people acting in public office if they are in a public place

What defines a public place?

Any place that any member of the public has accessibility to, including but not limited to transit facilities, community centres and recreational parks.

The Grey Areas

You can legally record others interacting in a public place when the following criteria is met:

  • Your video does not capture the audio of their conversation
  • The subject of the conversation is not clearly obvious from the video
  • The two people talking must be in a public place and have reasonable expectation that they are not in a private setting

Is it illegal to record a conversation?

While using a recording device such as a camera, voice recorder or microphone is often useful to preserve information about conversations, phone calls and interviews, as well as documenting events that take place at public meetings or court hearings – where you record and what you record will dictate the legal limitations of what you are allowed to record.

You should always be aware that one or more set of limitations or laws can apply to the use of your recording devices. Before simply assuming that what you’re doing has no implications, or disregarding the prospective legal factors surrounding recording devices – be mindful that you need to be aware that the type of recording you choose to make will dictate whether you are in the clear or not.

Legislation can also vary state from state.

In California – it is a two-party law, meaning both individuals must consent to the recording otherwise it is illegal to record. In other states, such as Ne York, there is a one-party law, where only one person needs to consent to the recording of a conversation.

When you record public officials or police, it is legal to record them if the recording is made within a public place. On private property, you must follow the direction of the police regarding your use of recording device.

Is it illegal to record someone without their consent?

First, let’s consider the definition of consent. Consent by definition is “free agreement, free and voluntary agreement, or consent that is freely and voluntarily given.” To take this one step further, consent means amicable agreement provided by one individual to another without being coerced, pressured, threatened or otherwise forced to provide consent they wouldn’t otherwise agree to.

The use of recording devices to obtain recordings of conversations holds serious implications of individual’s rights as well as their expectation of privacy. Laws are in place to protect against potential abuse. California has strict laws in place pertaining to recording of conversations.

Is it illegal to record a conversation in California?

California undoubtedly holds some of the strongest and strictest law in the country regarding audio and video recording. To put simply – without consent of all parties present – the recording is not only inadmissible in court, but illegal and a crime to obtain which allows the injured party to sue for damages.

These laws were enacted to protect individual’s privacy rights. The statutes were also implemented to protect consumers from mass telecommunication harassment. 

Common Issues

The above law has noticeable loopholes. If both parties did not have a reasonable expectation to privacy, then all recordings are legal and admissible in court. Keep in mind that just because one is present in a public place, does not necessarily mean the individual does not have an expectation to their privacy. Many private conversations can occur within coffee shops or restaurants or local parks – this is where the grey area needs to be clearly defined. If consent is not both clearly expressed and obtained by the other party, the person recording undertakes a great deal of risk to obtain the recording. Telephone conversations are always considered private conversations where the individual has clear expectations of reasonable levels of privacy.

California call recording laws

California call recording laws govern the privacy of telecommunications, including recorded conversations. Telephone tapping is strictly regulated to safeguard the telephone user privacy and must be authorized by a court to be approved as evidence. In California, call recording is a strictly two-person matter, meaning both parties must consent to being recorded otherwise the recording is illegal.

The law is applicable to confidential communication and applies when either party has a clear expectation to their right to privacy. Under Section 632.7 of Penal Code § 632, communications are not confidential if both communicating parties have reasonable expectations that the conversation can be overheard. It also excludes communication made in public gatherings or officials communicating with the public in a public place.

Section 632.7 of Penal Code § 632 also specifies that it is illegal to record a conversation where one or both parties are communicating on a cordless telephone or a cellular phone, and it is prohibited to record on these devices without a warning provided and consent obtained.

Penalties for an illegal recording in Calijfornia

The Penal Code § 632 which is enacted under the California Invasion of Privacy Act makes recording and monitoring of confidential information unlawful, whether the communication is carried out in the presence of another or by means of a telephone or similar device. California is known as the two-party State – which means that if the other person does not know they are being recorded, then you are breaking the law to record them without prior consent. All parties to conversations you intend to record must consent to the recording before initiating. 

Violations under Penal Code § 632 can incur a fine of up to $2,500, sometimes in addiction to a 12-month jail sentence. The violator of Penal Code § 632 can also expect to be subject to civil claim liability in an amount of three times the damages sustained by the victim as a result of the illegal recording. Other U.S States only require the consent of one person to a conversation for the recorded conversation to be considered legal, provided there is consent of at least one individual to the call.

Additionally, repeat offences after a conviction are punishable by one-year imprisonment term and fines of up to $10,000 per violation. Any person who is injured by a violation of the California Right to Privacy Act can sue the violator for either triple the amount of damages sustained or $5000 per violation. Any communication illegally obtained is inadmissible in a court of law and cannot be used in an administrative proceeding.

California also has very severe penalties for recording, possessing and distributing illegal video recordings. An individual who is charged with making an video recording of another person without their consent and with intent to invade their privacy is subject to a state jail felony. Convictions on this charge likely lead to up to two years in state jail and a fine of $10,000. The same penalties apply to any person who participates in distribution of the recording, or promotes, trades or sell illegal recordings. People who are victimized by such recordings can sue the convicted offender for $10,000 per violation.

Under Penal Code § 632, confidential communication can include communication that any party reasonably expects to be confined to the selected parties, but exclude communication made in public settings or administrative public proceedings, where the individual can reasonably expect to be overheard and/or recorded by the public.

Problematic issues arise in court proceedings when an individual presents a recording as admissible evidence, only to discover the recording has been illegally recorded and inadmissible as evidence.

Is it illegal to record someone without their knowledge?

Recording someone without their knowledge may be considered to be eavesdropping, the act of listening in on other’s conversations, including ones that don’t take place over a phone line, and with the use of a recording device. Penal Code § 632 is the Californian statute that makes eavesdropping a criminal offence. In order for an act to be a crime under this statute, the following criteria must be met:

  • The act must be an intentional act, not accidental.
  • It needs to take place without the consent of the individual speaking
  • The conversation needs to be confidential
  • The act needs to involve the use of a recording device with the intention of recording the conversation

Confidential conversation means that at least one party to the conversation does not intend any other to hear the conversation.

Examples of eavesdropping

  • James is attending university and deceptively sneaks into a private meeting between two professors and records their conversation on his phone
  • Michelle is angry at her boss and wants to find leverage on him; she then plants a recording device in his office in order to listen to his private conversations
  • Harry breaks into his former partner’s apartment and places a recording device in her bedroom so he can listen to her private conversations

Acceptable examples of legally recording someone without their knowledge

  • Officials, authority, police or public figures in a public place giving speeches or presentations to the public
  • Any individual in a public place, acting in a manner (e.g. shouting, yelling) that reasonably would suggest the individual expects their conversations to be overheard.

Exceptions to eavesdropping

Private citizens can find the grey area and be exempt from penalties if they are recording a conversation in order to gather evidence about certain types of crimes committed. This exception applies when:

  1. The person recording is one of the parties to the conversation, and
  2. That person has recorded the conversation to gather evidence they reasonably believe is related to the investigation regarding the other party’s involvement in one of the following crimes: extortion, kidnapping, bribery, or other felony offence involving violence such as murder or sexual assault.

Is it illegal to record someone in your own home?

There are a multitude of reasons why someone would want to set up video surveillance within their own home, such as:

  • Individuals concerned about their safety within their home in case of home invasions
  • Parents wanting  to assess the level of care provided to their children by a nanny while absent
  • You may simply want to know your home is safe while you are on vacation and out of the country. 

These are all are valid reasons and stem from security precautions.

On a federal level, it is legal to record surveillance with a hidden camera within your home – and no, you don’t need the consent of the other person who is inside your home. Laws vary on home surveillance recording from state to state, so it is important you check your relevant State legislation to ensure you abide by the correct laws. Notably, it is illegal to record on a hidden video camera within areas within your home that an individual would have a reasonable expectation of privacy – for example, the bedroom or the bathroom. Not all States expressly bans the use of hidden surveillance in places where an individual holds a reasonable expectation of privacy – but this does not mean you should assume it is morally acceptable or legal to record a person without their prior consent in any private area.

Is it illegal to video record someone without their consent?

The short version? You can record video of people in public – but don’t record their faces and don’t record audio of conversations. When a person is in a public place, for the most part – you can safely assume they do not hold a reasonable expectation of privacy as they are in public, but it also depends on the situation. Are they having a private meeting with another? Are they in a public place they still expect a reasonable amount of privacy to – such as a bathroom, locker room or changing rooms? The situation varies and just because someone is in a public place, does not mean you should automatically own the right to video the person without prior consent.

The Final Verdict

Overall, is it illegal to record someone? The answer varies depending on the situation, place and intent and State.

Make sure you are fully aware of your rights to record as well as the implications of recording when you do not have consent of the other person. What you may assume to be consent from a person if they are in a public location does not necessarily mean that the individual agrees that they are providing consent for you to record them. As a result, you may be breaching their personal privacy rights. All in all – morality and common sense should apply, and when in doubt? Get consent first to avoid legal ramifications later.

For more information about your rights surrounding recordings, contact Crosner Legal today.


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