There are many situations in which someone may want to record a conversation, particularly when a dispute is unfolding or litigation is anticipated. However, the legality of recording a conversation depends on both federal and state law, and the rules vary significantly by jurisdiction. In addition, even if a recording is lawfully made, separate rules govern whether it may be admitted into evidence in a civil or criminal proceeding.
California’s laws in this area are among the most restrictive in the country and differ substantially from “one-party consent” states such as New York and New Jersey. Understanding these distinctions is critical before recording any in-person or telephone conversation.
California’s Two-Party Consent Rule
California is a “two-party” (or “all-party”) consent state. Under the California Penal Code, it is generally illegal to record a confidential communication unless all parties to the conversation consent to the recording, though very limited exceptions may (sometimes) apply. This applies to in-person conversations, telephone calls, and many electronic communications where the participants have a reasonable expectation of privacy.
Violating California’s two-party consent law can result in:
- Criminal liability (a misdemeanor), and
- Civil liability, including statutory damages, actual damages, and attorney’s fees.
Because of these potential penalties, recording a conversation in California without proper consent carries significant legal risk.
Federal Law and Interstate Communications
Federal wiretapping law follows a different standard. Under federal law, only one party’s consent is required to lawfully record a conversation. This means that, in many states, a person may legally record their own conversation without informing the other participant.
Complications arise, however, when a conversation crosses state lines. When one party is located in California and the other is located in a different state, California courts have held that California’s two-party consent law may still apply if the recording affects a California resident who did not consent. In other words, California’s protections can extend beyond its borders when a California participant’s privacy rights are implicated.
This is especially important for businesses operating outside of California. Companies based in one-party consent states may still face liability if they record calls with California customers or employees without first obtaining their consent.
At the federal level, illegal wiretapping can carry severe penalties, including potential imprisonment, substantial fines, and civil liability for damages and attorney’s fees.
Admissibility of Recorded Conversations in California Courts
Whether a recording may be used in court is a separate question from whether it was lawfully made.
In civil cases, a recording made in violation of California’s two-party consent law is generally inadmissible. Even lawfully obtained recordings may face exclusion under traditional evidentiary rules, such as the prohibition against hearsay, unless an exception applies.
In criminal cases, California’s “Truth in Evidence” provision can allow the admission of recordings that were unlawfully made, so long as they satisfy applicable hearsay exceptions or are otherwise admissible (for example, as a party admission, an inconsistent statement, a declaration against interest, or for impeachment purposes). Similar principles apply in federal court.
Conclusion
California provides strong privacy protections for individuals and imposes serious civil and criminal consequences for unlawful recording. Before recording any conversation involving a California participant, or before relying on a recording in litigation, it is important to understand both consent requirements and evidentiary limitations.
If you are considering recording a conversation, or believe you have been recorded without consent, consulting with an experienced attorney can help you assess your legal rights, risks, and available remedies.
Contributions to this blog by Kennedy McKinney.