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MAY I TAPE RECORD A HARASSING TELEPHONE CALL?

You’ve heard it many times: “This call may be monitored or recorded for quality assurance.”  But, may you, as a California private citizen, lawfully tape record telephone calls?  Are you permitted to secretly tape record a harassing person-to-person call from a neighbor or overzealous creditor?

Both federal and California law regulate and restrict the tape recording of telephone conversations.  Generally, when a person tape records a confidential telephone call without the consent of all parties, he or she commits a crime (California Penal Code §632).  A violation of Penal Code §632 is punishable by a fine of up to of $2,500.00 or maximum of one year in jail.

If you live in California and want to tape record a telephone call from another person in California, you must first obtain their consent or permission to do so.1   The most common legally acceptable telephone tape recording strategy you may use is to verbally obtain the consent of all parties to the conversation at the beginning of the telephone call.  But who is going to consent to be tape recorded?  Regarding the person on the other line, his or her consent may be implied if you notify him or her that you are tape recording him or her, and they continue with the call knowing you are tape recording the call.

Now, if you are seeking to secretly record a telephone conversation, there are exceptions to the consent requirement as in cases related to the commission of certain, specified types of crimes or if the call is not considered confidential (See Penal Code Sections 632 and 633.5).  Confidentiality is defined by state codes and by case law.  If you desire to secretly record a call in order to obtain evidence, you are urged to first seek legal advice from competent legal counsel to avoid committing a crime and to assure the recording will be admissible in a court of law.

It is not always clear whether California law, state law from another state, federal law, or a combination thereof, applies to specific situations. Which law applies depends on: (1) Where the call originates; (2) Why the recording is being made; and (3) Who places the call. To stay within the law, you may wish to refrain from tape recording telephone calls you make or receive that involve parties who are calling from out of state.

You may ask, “What if I am the victim of an illegal tape recording?” Anyone injured by a violation of the wiretapping laws can recover civil damages of $5,000 or three times actual damages, whichever is greater. California Penal Code § 637.2(a). A civil action for invasion of privacy also may be brought against the person who committed the violation. Cal. Penal Code § 637.2.