Reversing a decision by the Fourth Appellate District Court, the California Supreme Court recently held that the law against secretly recording phone calls covers the parties who are involved in the call. The intermediate appellate court had ruled that the law covers only third parties who are listening into the call. The Supreme Court unanimously disagreed in holding that consent is required even if a party to the call wants to record it.
While Chief Justice Tani Cantil-Sakauye acknowledged that California Penal Code Section 632.7 could support the Fourth Appellate District interpretation, she felt that the ban on recording a phone call “without the consent of all parties” covers recordings by parties as well as non-parties. Her opinion referenced decisions by federal district courts that have considered this issue, while analyzing Supreme Court precedent and the intent of the state legislature. According to an earlier decision by the Supreme Court, a conversation is considered confidential if a party to it has an objectively reasonable expectation that the conversation will not be overheard or recorded. Cantil-Sakauye also cited the legislative history of Assembly Bill 2465, which was eventually codified as Section 632.7. During committee analysis of the proposed law, legislators broadly discussed the importance of protecting calls on cell phones and cordless phones from recording without consent. They did not limit their goal to preventing eavesdroppers from recording conversations.
The decision in this case arose from a lawsuit by a consumer against LoanMe, Inc. The consumer alleged that the loan company recorded a call with him without his consent. The Fourth Appellate District had ruled in favor of the loan company, determining that the statute did not cover its behavior because it was a party to the call. Following its reversal, the California Supreme Court sent the case back to the intermediate appellate court for further proceedings.
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