Personal Surveillance   1 comment

Occasionally I’ve heard (or muttered myself), “If only I had a tape recording running during that conversation.”  Sometimes it is due to a complaint with customer service, sometimes it is due to a conversation someone had with their boss, or their exit interview, or any one of a number of other conditions.  I was asked recently, “Hey, is it actually okay for me to record a phone conversation with someone else?”

Turns out this is a pretty complicated question.  Making audio recordings of conversations with other people, whether in person or on the phone, is legally restricted in most states.  You can see guidelines at this web site from the Reporters Committee for the Freedom of the Press.  Since I live in California, I’ll quote their reference on my home state here:

Cal. Penal Code §§ 631, 632: It is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties.

It is also a crime to disclose information obtained from such an interception. A first offense is punishable by a fine of up to $2,500 and imprisonment for no more than one year. Subsequent offenses carry a maximum fine of $10,000 and jail sentence of up to one year.

Eavesdropping upon or recording a conversation, whether by telephone (including cordless or cellular telephone) or in person, that a person would reasonably expect to be confined to the parties present, carries the same penalty as intercepting telephone or wire communications.

Conversations occurring at any public gathering that one should expect to be overheard, including any legislative, judicial or executive proceeding open to the public, are not covered by the law.

An appellate court has ruled that using a hidden video camera violates the statute. California v. Gibbons, 215 Cal. App. 3d 1204 (1989). However, a television network that used a hidden camera to videotape a conversation that took place at a business lunch meeting on a crowded outdoor patio of a public restaurant that did not include “secret” information did not violate the Penal Code’s prohibition against eavesdropping because it was not a “confidential communication.” Wilkins v. NBC, Inc., 71 Cal. App. 4th 1066 (1999).

Anyone injured by a violation of the wiretapping laws can recover civil damages of $5,000 or three times actual damages, whichever is greater. Cal. Penal Code § 637.2(a). A civil action for invasion of privacy also may be brought against the person who committed the violation. Cal. Penal Code § 637.2.

The full Penal Code citation is here.  There are a number of exceptions for various reasons (law enforcement personnel, people with restraining orders, etc.)

By my reading (usual disclaimer: I’m not a lawyer), it seems perfectly reasonable for someone to record a conversation if they’ve already been notified the conversation may be recorded, since the other party has no reasonable expectation of privacy.  So if you’re calling tech support, or a customer complaint line, and before you get a representative you hear those all-so-common words, “This conversation may be recorded for quality control purposes”, you can start recording yourself, if you want your own record of the conversation (I do this if I’m in a dispute).  If not, however, you need to inform the party at the other end of the line that you’re recording.  Also, if you’re not interested in having a recording, you are perfectly within your rights to refuse your consent; just because they inform you that they might record a conversation doesn’t give them the right to record it unless you consent.

Oh, and if you want to tape an in-person conversation, have it in a public place.  So if you think you’re about to be fired without cause, it’s better to go to lunch with your boss than it is to join them for a meeting in their office.  Jerry Maguire should have known that, it would have given him some ammunition.


Posted December 18, 2007 by padraic2112 in security

One response to “Personal Surveillance

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  1. Thank you for this information; we have been writing about privacy on our spy & surveillance blog, and the question had come up about public surveillance, as well as how we can perform counter surveillance against them legally. If it’s in public, there is no expectation of privacy. The question is, if they are recording us with hidden cameras, and it’s legal, why can’t we?

    Seems Wilkins v. NBC takes care of that. Thanks for pointing out the statues and links, they are valuable to any freedom lover.

    Christopher Winkler
    Provider of Spy & Surveillance Equipment

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