An Eavesdropping Question…

An interesting issue came up during a preliminary hearing that I handled not too long ago. My client was accused of felony eavesdropping in violation of Penal Code section 632 after she recorded a phone call that was at the same time and without her knowledge being recorded by the other party. I’ll say it again: both parties to the communication were surreptitiously recording each other without the other’s knowledge or consent. Are you not entertained?

In California, Section 632 of the Penal Code expressly prohibits surreptitious monitoring of confidential communications without the consent of all parties to the conversation. Section 632, subd. (c), defines "confidential communication" to include any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in 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.

So is a phone call with two parties surreptitiously recording each other a confidential communication within the meaning of section 632 subd. (c)? I say no.

Guess what? There isn’t a robust body of case authority addressing this issue in the criminal context – I want to say two unpublished opinions dealing with criminal violations of 632? Maybe this is the first time a phone call has been simultaneously and surreptitiously recorded by both parties in the history of California criminal jurisprudence. I would bet the money line that it is.

My argument went something like this:

The final clause in subd. (c) of section 632 excludes any communication made under any circumstance in which the parties to the communication may reasonably expect that the communication may be recorded.

Let’s break it down: we have two parties to this communication. PARTY 1 (my client) and PARTY 2. Because PARTY 2 was recording the phone call herself, she reasonably expected that the communication was being recorded. And because PARTY 1 was herself recording the phone call, she likewise reasonably expected that the communication was being recorded. With me? Good. PARTY 1 expected the communication to be recorded because she was recording it. PARTY 2 expected the communication to be recorded because she was recording it. The call was not a confidential communication as defined in subd. (c) because all parties expected it to be recorded. The charge should have been dismissed.

The court disagreed but reduced the charge against my client to a misdemeanor (over my objection) pursuant to 17(b) of the Penal Code. Why would I want the charge to remain a felony? Hmm. The story ends with the entire case against my client being DISMISSED. I can live with that but I wanted my client to remain charged with a felony. Why would I want that? Onward.