Is it illegal to record someone in California?

California is a “two-party consent” state, meaning that it is illegal to record a conversation without the consent of all parties involved. Without everyone’s consent, you are unlawfully eavesdropping under California Penal Code 632 PC.

Here are five key things to know:

1. Eavesdropping is a wobbler, meaning that it can be charged as a misdemeanor or a felony. 1
2. Misdemeanors carry up to 1 year in jail and/or $2,500; felonies carry up to 3 years in jail and/or $2,500.
3. You can legally record a communication made in a public gathering.
4. Police and some private citizens can record conversations to gather evidence of a crime.
5. Eavesdropping is a separate charge from wiretapping.

What is eavesdropping under Penal Code 632?

Penal Code 632 is the California statute that makes eavesdropping a crime. For an act to be a crime under this statute, then the following must be true:

1. the acts need to be intentional and not accidental,
2. it needs to take place without the consent of the person speaking,
3. the conversation needs to be confidential,
4. the act needs to involve using an electronic amplifying or recording device, either to overhear the conversation in the first place or to record it.

California criminal law says that a conversation is confidential when it takes place in circumstances that reasonably indicate that at least one party to the conversation intends for no one else to overhear it. Whether or not a conversation is confidential is a question decided by the facts of a given case. 2

Examples of acts that would be considered eavesdropping are:

• Sally wants to get dirt on her boss, so she places a recording device in his office to listen in on his private talks.
• Jose is in college and sneaks into a meeting between two of his professors and records them talking with his phone.
• Martel sneaks into his ex-girlfriend’s apartment and puts a recording device in her bedroom to listen in on her private conversations.

Does Penal Code 632 apply to public conversations?

PC 632 does not apply to public conversations in which the facts show that, under the circumstances, it was not reasonable that a party to the conversation would intend for no one to hear it.

According to Penal Code 632c, the statute also does not apply to:

“any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” 3

Does PC 632 apply to the police and recordings used to gather evidence?

Penal Code 632 does not apply to eavesdropping by law enforcement personnel: Police can legally “listen in” on private conversations without the parties’ consent. In addition, any evidence police obtain this way is admissible in court.

You as a private citizen can get around the law against eavesdropping if you record a conversation in order to gather evidence about certain kinds of crimes. This exception applies if:

1. you are one of the parties to the conversation that you are recording, and
2. you are recording the conversation in order to gather evidence that you reasonably believe is related to the other party committing:
   • extortion,
   • kidnapping,
   • bribery, or
   • any felony involving violence against another person (such as murder or rape) 4

What are the penalties for eavesdropping?

A violation of Penal Code 632 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony at the prosecutor’s discretion.

If the prosecutor decides to charge the crime as a misdemeanor, then the maximum penalties are:

• imprisonment in the county jail for up to one year, and/or
• a fine of up to $2,500.

If charged as a felony, then eavesdropping is punishable by:

• up to sixteen months, two years, or three years in county jail or state prison, and/or
• a fine of up to $2,500.

If you were previously convicted of:

• eavesdropping, or
• certain other crimes associated with invasion of privacy (including wiretapping, intercepting a cell phone call, and intercepting a call on a cordless phone),

the maximum fine rises to $10,000. 5

Is eavesdropping the same as wiretapping?

No. The California crime of illegal wiretapping (PC 631) is closely related to eavesdropping – but the two offenses are different.

Wiretapping is the act of intercepting and listening in on phone conversations by using a machine to “tap” into the phone line over which they take place. Eavesdropping, on the other hand, is the act of listening in on conversations (including those that don’t take place over the phone) with the aid of an electronic device that is NOT a wiretap of a phone line. 6

Wiretapping is different from eavesdropping.

Is there a “right to record act” in California?

Yes. In 2015, then California Governor Jerry Brown signed Senate Bill 411 which clarified that you may lawfully record police officers in public or anywhere else you have the right to be. This includes:

• taking photographs,
• audio recordings, and
• video recordings.

This Right to Record Act also decrees that recording a peace officer does not constitute reasonable suspicion for police to detain you. Nor does it constitute probable cause for police to arrest you. For example, simply recording a police officer (PC 148g) does not qualify as resisting arrest or obstructing an officer (PC 148). 7

Related offenses

• Criminal invasion of privacy (PC 647j): A misdemeanor where you use a device to invade a person’s privacy, secretly photographing a person’s body for the purpose of sexual gratification, or secretly photographing someone to view that person’s body or undergarments.
• Peeking while loitering (PC 647i): A misdemeanor where you peek into an inhabited building, and do so while loitering on private property.

Additional reading

• Treatment of Statutes Requiring All-Party Consent to Tape Recording: Judicial Interpretation or Nullification – Criminal Law Bulletin.
• Reassessing Wiretap and Eavesdropping Statutes: Making One-Party Consent the Default – Harvard Law & Policy Review.
• California’s Eavesdropping Law Endangers Victims of Domestic Violence – John Marshall Journal of Information Technology.
• The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring with the Consent of a Participant in a Conversation – Columbia Law Review.
• Consent to Electronic Surveillance by a Party to a Conversation: A Different Approach – Tulsa Law Journal.

Legal References

1. California Penal Code 632 PC.
2. See note 1. See, for example, People v. Nazary (Cal. App. 4th Dist. 2010), 191 Cal. App. 4th 727. See also Rojas v. HSBC Card Services Inc. (Cal. App. 2023) 93 Cal. App. 5th 860.
   
3. See note 1.
4. See note 1.
5. See note 1.
6. PC 631.
7. PC 69. PC 148. See also People v. Kruse ( Court of Appeal of California, Fourth Appellate District, Division One, 2020) 56 Cal. App. 5th 1034 .