Eavesdropping Explained

As residents and citizens of California, everyone in the state enjoys the “inalienable right of privacy.”The California government has always taken privacy very seriously. In 1967, the state legislature passed an “Invasion of Privacy Act,” which outlined criminal penalties for invading another citizen’s privacy.

Today, Penal Code 632 makes it “a crime to use an electronic device to overhear or record a private conversation.” In order for eavesdropping to be a crime, the following elements are required:

  1. Must be intentional.
  2. Must take place without the permission of the parties to the overheard conversation.
  3. The conversation needs to be confidential. In other words, at least one party intended that no one else hear the conversation and expected privacy.
  4. Must involve the use of an electronic device, either to hear the conversation or to record it.

California has also acted quickly to protect cell phone and cordless phone calls. Penal Code 632.5 and 632.6 say intercepting “a call between two cell phones, two cordless phones, a cell or cordless phone and a landline phone, OR a cell phone and a cordless phone, with criminal intent and without the consent of both parties to the call” has the same penalties as ordinary eavesdropping.

Penal Code 632 Penalties

The penalties for eavesdropping can vary based on the accused individual’s record and the prosecutor. A prosecutor may try eavesdropping as a misdemeanor or a felony. If it is a misdemeanor, the accused individual can be fined up to $2,500, one year in county jail, or both. If it is a felony, then the accused can be fined $2,500 and/or sixteen months, two years, or three years in state prison. The maximum fine can be raised to $10,000 if the individual has a record of eavesdropping.

Not only can the accused face criminal penalties, an eavesdropper may also face a civil lawsuit. A victim of eavesdropping can sue for up to three times the damages they suffered or for $5,000, whichever is greater. Even if the victim does not suffer any economic damages as a result of the eavesdropping, he or she can still sue for up to $5,000.

Can you use information gathered through eavesdropping as evidence?

The answer to this question is no. Although gathering information by using an electronic device to eavesdrop may seem like a reasonable way to win a legal argument, you can face criminal charges for the eavesdropping. The evidence gathered through eavesdropping will not be admissible in a court of law.

When can you eavesdrop legally?

There are certain circumstances and situations where private citizens can eavesdrop legally to gather evidence. An individual can legally eavesdrop if he/she is one of the parties in the conversation and the person recording the conversation is collecting evidence because he/she believes that the other person is involved with the following crimes: extortion, kidnapping, bribery, any felony, or any annoying phone calls (Penal Code 653m).

You can also legally record a conversation with someone, without their permission, if you are seeking a restraining order against that person. This usually falls under the CA Domestic Violence laws and Penal Code 273.6. These recordings would be admissible in a court of law.

Wiretapping

CA Penal Code 631 prohibits wiretapping. While eavesdropping and wiretapping are similar crimes, 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 is only listening in on the conversation. Similar to eavesdropping, the penalties for wiretapping depend on whether the crime is tried as a misdemeanor or a felony.

Eavesdropping and Wiretapping by Law Enforcement

Interestingly, most citizens are not concerned about other citizens eavesdropping on their private conversations. They are more concerned about the government listening to them. The 1967 Invasion of Privacy Act made it very clear that eavesdropping laws did not apply to law enforcement officials. In addition, any evidence they gather by eavesdropping is accepted in court.

However, this does not mean law enforcement officials can listen in on your private conversations whenever the want to. If they want to wiretap your phone or intercept your calls, they must get a court order. Authorities are usually able to get court orders for the following crimes: serious drug crimes, murder or solicitation of murder, kidnapping, and terrorism. They must also convince the judge that other investing procedures have failed and wiretapping and eavesdropping are a last resort.

For Americans today, eavesdropping has become a serious issue with the rise of terrorism. We hope this analysis of eavesdropping laws in California has provided you with more information on illegal and legal eavesdropping. Our goal is that a more thorough understanding of eavesdropping laws in California will better protect our clients and businesses.

Source referenced: Shouse California Law Group

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