Unauthorized Audio Recording & Wiretapping
California PC 631 & PC 632
In California, it is illegal to wiretap the communications of another person without the other person's consent or without court order. It is also illegal to record another person's audio communication without the other person's consent or court order.
The Crime of Wiretapping (PC 631)
Wiretapping means to use a device, commonly called a bug or spy ware to eavesdrop on another person's conversation, or electronic communication.
Wiretaps can be secretly placed on just about anything, including phones, walls, vehicles, computers, people, etc. Wiretaps can be stationary, such as a bug placed in a flower at an office, or mobile, such as a bug sewn into a woman's purse or on her cell phone.
Wiretapping is never legal for private citizens. Law enforcement may use wiretaps in limited situation when there is a valid warrant supported by probable cause that authorizes the law enforcement agency to wiretap. Evidence obtained by police as a result of wiretapping without a warrant is illegal evidence and may not be used against the defendant in a criminal case.
Unauthorized Audio Recordings (PC 632)
Recording the audio communications or conversations of another person without a court order or the other person's consent is illegal in California. The law on unauthorized audio recordings is found at penal code 632.
Unauthorized audio communication means recording another person's voice without the other person's consent or knowledge. However, if the recording is not directed at a particular person there is no violation of PC 632. For example, a recording of an open and public event with people talking in the background is not illegal pursuant to PC 632 because the recording is not directed towards any particular person.
Law enforcement may record the communications between two people without a warrant if the police officers reasonably believe that the communication will lead to probable cause to believe that a crime is about to be committed or that a particular crime has already been committed, and only if the law enforcement agency has the consent of one of the parties to the conversation.
The most commonly recorded conversations by law enforcement is between defendants and victims of crime. In the most common scenario, the alleged victim of a crime is contacted by police and asked to perform a recorded pretext phone call. The term pretext simply means that the text of the conversation is predetermined. Law enforcement's goal when using recorded pretext phone calls is obtain an apology confession from the defendant towards the alleged victim. Recorded pretext calls are common in domestic violence and child molestation cases.
Unauthorized audio recordings by private citizens is illegal without a court order and any evidence obtained as a result of the unauthorized audio recording may not be used in any civil or criminal proceedings. Private citizens audio recording other private citizens is most commonly found in divorce and child custody proceedings. A private citizen may record the audio communication of another person without consent so long as a court has previously granted permission. Court orders for permission to audio record another person is common in civil and criminal domestic violence cases (PC 632).
If a person reasonably should know that he or she is being recorded than they do not need to grant express consent to audio record. For example, if a person places a recorder in front of another person and says "I want to record this conversation" then the fact that the other person does not object is equal to the other person's consent. Implied consent is most commonly demonstrated every time a person leaves a recorded message on an answering machine.
PC 633.5 allows for unconsented audio recording of another person in limited situations. The situations include phone harassment by the person recording the harrassment and any recording of a communication relating to the commission of extortion, bribery, kidnapping, or any felony involving serious violence against the person recording the communication or his or her family (PC 632, 633.5 & 653m).
Sentence & Punishment for PC 631 and 632
PC 631, illegal wiretapping, may charged as a misdemeanor or as a felony. When illegal wiretapping is charged as a misdemeanor the defendant may face up to one year in the county jail. When illegal wiretapping is charged as a felony the defendant may face up to three years in prison.
PC 632, eavesdropping, also known as unauthorized audio recording or recording a conversation without consent, may also be charged as a misdemeanor or as a felony. When PC 632 is charged as a misdemeanor the defendant may face up to one year in the county jail. When PC 632 is charged as a felony the defendant may face up to three years in prison.
In some cases of PC 631 or 632 it may be possible to receive a probation only sentence (no jail or prison). In other cases a suspended sentence or split sentence may also be possible. Whether or not the criminal charges are dismissed, reduced, or lightly sentenced depends largely on the facts of the case and the defendant's criminal history.
Collateral Punishment for PC 631 & 632
In addition to any probation or jail sentence, if convicted of illegal wiretapping or unauthorized audio recording, the defendant will also suffer collateral consequences, including, harsh probation or parole terms, fines, restitution, restraining orders, immigration consequences for non-United States citizens, professional licensing consequences for licensed professionals, enhanced penalties for future crimes, and more.
Defenses to PC 631 or 632
Every criminal case is different and therefore every defense is different; however, common defenses to a charge of illegal wiretapping or audio recording without consent include: insufficient evidence to prove all of the elements of the charge, mistake of fact (did not know the recorder was operating), statute of limitations, consent, intoxication, PC 633.5 exception (see above), coerced confessions, and more.
If you or a loved one is charged with a violation of California PC 631, illegal wiretapping, or PC 632, unauthorized audio recording without consent, contact our criminal defense attorneys without delay and for a free consultation. Our criminal defense attorneys dedicate 100% of their practice to criminal law and we have successfully handled hundreds of misdemeanor and felony charges in the Inland Empire and Los Angeles County. Call today!
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PC 631 & 632: Wiretapping & Unauthorized Recordings
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PC 632 Unauthorized Audio Recording
- Criminal Threats
- Domestic Violence
- Drunk in Public
- Elder Theft
- Evading Police
- False Personation
- Hit and Run
- Illegal Recordings
- Indecent Exposure
- Vehicle Theft
- Welfare Fraud
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Related Crime to PC 632: Recording without consent
- PC 631 Illegal Wiretapping
- PC 636(b) Eavesdrop on a confidential communication of an inmate
- PC 633.5 Exceptions to the law against audio recording without permission
- PC 653m Annoying or harassing phone calls (as an exception to the law of PC 632)
- PC 664/632 Attempted audio recording without consent
- PC 635 Make or sell eavesdropping device
- PC 637 Disclose a telephonic conversation without legal permission
- PC 637.1 Wrongfully obtain phone communication