Invasion of Privacy (Eavesdropping)

California Penal Code section 632 (PC 632) is the state law that prohibits eavesdropping on confidential communications. Under this section, eavesdropping is defined as use of an electronic amplifying or recording device to intentionally listen in on or record another person's conversation without their consent. PC 632 applies to all types of confidential communications, including telephone calls, in-person conversations, and electronic communications. California is a two-party consent state, which means that all parties to a conversation must consent to its recording. This is in contrast to one-party consent states, where only one party (which can be the recording party) to a conversation needs to consent to its recording.

The definition of "confidential communication" is broad. It includes any communication that is carried on in circumstances that reasonably indicate that the parties to the communication desire it to be confined to them. This could include conversations that take place in private, even if they are not in a traditionally "confidential" setting, such as a doctor's office or a lawyer's office.

There are a few exceptions to PC 632. For example, it is not illegal to eavesdrop on a confidential communication if:

• You have the consent of all parties to the conversation.
• If you have a valid restraining or protective order against an individual, you are permitted to record any conversations that person attempts to have with you without the restrained person’s consent.
• You are a law enforcement officer and you are eavesdropping on a conversation in the course of an investigation.
• The conversation was made in a public gathering or proceeding where the communicating parties reasonably expect that the communication may be heard by others or recorded.

EXAMPLES:

Dave suspected his wife was having an affair. He set up a recording device in his bedroom. His suspicions are confirmed when the device captured a recording of his wife and another man in the bedroom. Even though it was Dave’s bedroom where he installed the recording device, he intentionally recorded the confidential communications of the parties without their consent and therefore committed the offense of eavesdropping.

Michelle suspected her friends of plotting a crime. She secreted herself in a closet and listened to their plans. Michelle is not guilty of eavesdropping because she did not use a recording device. If Michelle had recorded the conversation, she could be held on a charge of eavesdropping even if she argued that she was recording the confidential conversation for the purpose of handing it over to the police for investigation.

June was at a political rally where she was recording the speaker on the stage. Her recording device also picked up a conversation of two people in the audience who were plotting to murder the speaker. June turned this over to the police. June did not commit the offense of eavesdropping because she did not intentionally record the conversation between the two plotters. Furthermore, because this rally took place in a public arena, the two plotters should have reasonably expected that it would be overheard.

DEFENSES TO THE CHARGE OF EAVESDROPPING

Your Orange County eavesdropping defense attorney will carefully review the details of your charge for available defenses. Some of the common defenses to the charge of eavesdropping include:

• The eavesdropping was not intentional. As with the case of June, above, an incidental recording of a confidential communication lacks the requisite intent.
• You listened in on a conversation without all parties’ consent, but you did not record it. Even if you are able to repeat the conversation word-for-word, if you did not record it, you did not commit the offense.
• You had consent of all parties. This defense might be difficult to prove if a party or parties later deny that consent.
• The parties did not intend the communication to be confidential.

PENALTIES

Eavesdropping is a “wobbler” meaning it can be charged as a misdemeanor or a felony. If you are convicted of violating PC 632, you could face the following penalties:

• A fine of up to $2,500 per violation.
• Imprisonment in county jail for up to one year on a misdemeanor charge.
• Imprisonment in the state prison for up to three years on a felony charge.

In addition to criminal penalties, a conviction for violating PC 632 could also have civil consequences. For example, the victim of the eavesdropping could sue you for damages of up to $5,000 or a maximum of three times the amount of damages they suffered, whichever is greater.

Have you been charged with eavesdropping or a related offense?
ORANGE COUNTY EAVESDROPPING DEFENSE ATTORNEY
WILLIAM WEINBERG CAN HELP!

While the offense may not seem that serious, eavesdropping is a crime. Fortunately, this charge is often easy to beat or to get the charge “demoted” to misdemeanor if charged as a felony. Attorney William Weinberg explores every angle, with the goal of getting the best possible outcome for his clients. He offers a complimentary consultation to review your case and will discuss his assessment of your defense with you. He may be contacted at his Irvine office by calling 949-474-8008 or by emailing him at bill@williamweinberg.com

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