In today’s technologically advanced world, recording and surveillance are made easy by widely accessible and user-friendly equipment. Additionally, smart phone recording features, specialized apps and the prevalence of surveillance cameras in our day to day lives has made being recorded and recording others an everyday occurrence.
While there are many instances in which recording and surveillance are perfectly legal, such as private or home security uses, there are certain circumstances in which these activities actually constitute criminal activity.
In California, two such crimes are eavesdropping and wiretapping. While these crimes have a number of things in common, it is important to know the differences between them and how they are defined. If you have been charged with eavesdropping or wiretapping in California, there are strategies that an attorney may use in your defense.
To avoid possible fines or even jail time, it is important that you have a qualified criminal defense attorney on your side.
What is eavesdropping in California?
California is a “two party” state. This means that you cannot record a confidential conversation without the consent of everyone involved before the conversation starts.
Under California Penal Code 632 PC, if you record someone’s confidential conversation without their agreement, you could be charged with criminal eavesdropping.
Some examples of eavesdropping may include:
- Recording a conversation between patrons at a nearby table at a restaurant using your laptop or cell phone
- Listening in on your neighbor’s conversations via a police scanner radio
- Listening in on and recording a meeting between your boss and another coworker
In order to be convicted of eavesdropping in California, the prosecution must prove all of the following to be true of your case:
- You intentionally listened in on or recorded someone else’s conversation
- The conversation in question was confidential
- You did not have the consent of all parties participating in the conversation
- You listened to or recorded the conversation using an electronic device
There are some cases in which recording a conversation without consent are not considered eavesdropping, including recordings made in government proceedings or public places or places where people can reasonably expect that they may be listened to or recorded.
Surveillance and video cameras
While it is not against the law to use video surveillance cameras on your property for security, it is illegal when the recording can be considered an “invasion of privacy,” or recording someone in a context where it would be reasonable for them to expect privacy. For example, recording someone using the bathroom would violate reasonable expectations of privacy.
Additionally, capturing an image of another person’s private parts without their consent is a federal crime under the United States “voyeurism law.”
Can recordings be used as evidence in court?
A recording can be taken legally and used as evidence in court if either of the following apply:
- If the recording was taken by a law enforcement officer in an official capacity
- If the person who took the recording was part of a conversation to gather evidence that another party committed one of a number of specific crimes including phone calls violating Penal Code 653m PC (annoying phone calls), kidnapping, extortion, bribery, or violence against another person that constitutes a felony
Penalties for eavesdropping in California
In California, eavesdropping is a “wobbler” offense that can be charged as either a misdemeanor or a felony depending on the defendant’s criminal history and the facts of the case.
The potential penalties for misdemeanor eavesdropping are one or both of the following:
- A fine of up to $2,500
- Up to a year in county jail
The potential penalties for felony eavesdropping are one or both of the following:
- A fine of up to $2,500
- Up to 3 years in California state prison
It is also possible to be sued by a “victim” of eavesdropping in a civil suit if he or she claims to have suffered economic damages as a result. A plaintiff may sue for $5,000 or three times the amount of the economic damages, whichever is greater.
In California, it is possible to be expunged of an eavesdropping conviction. If you are convicted of eavesdropping, you are entitled to expungement upon completion of a jail term or completion of probation, depending on your particular case.
What is wiretapping in California?
Although wiretapping may be a commonly used tactic for gathering evidence by law enforcement, it is illegal in California for a private citizen to tap another person’s phone for any reason. Under California Penal Code 631 PC, the following activities constitute illegal wiretapping:
- Intentionally making a connection or tapping onto a phone or telegraph line
- Intentionally reading or attempting to read a message transmitted via telephone or any other type of wire without the permission of all parties
- Communicating or using (or attempting to communicate or use) any information gathered through the above methods
- Aiding or assisting someone else in the above activities.
It is not only illegal to intercept calls on landline phones, but on cellular and cordless phones as well. Whether any number of landline, cordless, or cellular phones are involved, intercepting calls between them is illegal and you will be subject to the same penalties regardless of the type of phone used.
Can information obtained through wiretapping be used as evidence in court?
Only law enforcement can use evidence obtained through wiretapping in a court proceeding. No information gathered through illegal wiretapping by a private citizen is admissible in court.
Penalties for wiretapping in California
Wiretapping is also a “wobbler” offense that can be charged as either a misdemeanor or a felony.
The potential penalties for misdemeanor wiretapping are one or both of the following:
- A fine of up to $2,500
- Up to a year in county jail
The potential penalty for felony wiretapping is:
- 16 months, 2 years, or 3 years in jail
As with eavesdropping, it is possible that the “victim” of wiretapping may bring a civil suit against you. If the alleged victim suffered economic damages as a result of the wiretapping, he or she may sue for $5,000 or three times the amount of the economic damages, whichever is greater.
Defenses against eavesdropping and wiretapping charges
If you have been charged with eavesdropping or wiretapping, there are a number of defense strategies which your attorney may consider depending on the facts of your case. Below are some of the most common strategies used for either or both charges:
Lack of intent: You did not intend to overhear, record, or intercept a private or confidential conversation.
Consent: You had consent from all parties to the private conversation to listen and or record.
No device was used: You did not tap into a wire or cellular device (in the case of wiretapping) or use a device to hear, amplify, or record a private conversation.
Restraining order: If you had a valid restraining order or protective order and were recording a conversation involving the party against whom you had that order in order to gain evidence or their violation of the order, you may not be guilty of eavesdropping.
If you have been charged with eavesdropping or wiretapping in California, you may be facing the possibility of hefty fines as well as jail time. Don’t gamble with your freedom, make sure you have a dedicated and experienced defense attorney on your side. As a California criminal defense attorney who has been representing clients for over 30 years, I am confident that I can find you the best possible outcome in your case. Don’t wait! Call my firm today to set up your consultation.