When Is It Illegal to Record in California?

On April 1, 2021, the California Supreme Court held that California Penal Code § 632.7¹prohibits anyone—both third parties and parties to the call—from intentionally recording communications involving a cellular or cordless telephone without receiving consent from all participants of the call.² This decision settles a short-lived split in California case law of whether California law prohibiting the recording of communications over a cellular or cordless phone applies to parties to that communication or only third-parties.³

At first blush, the Court’s recent decision does not significantly alter the current landscape of the law in California that already prohibits nonconsensual recording of phone calls. The precursor of Section 632.7—Penal Code § 632⁴—already prohibits parties to a phone call from recording phone communications without the other parties’ consent.⁵ However, some companies found a loophole in Penal Code § 632, which statutory language only covers communications involving non-radio telephones (e.g. non-cellular devices),⁶ and accordingly, as more and more individuals began to use cellular devices, those companies claimed § 632 did not protect those phone calls from being non consensually recorded.

The Court’s recent ruling effectively eliminates this loophole in Penal Code § 632, but at a potentially grave cost. By interpreting Penal Code § 632.7 to apply to parties to a communication, the Court’s ruling has effectively made it illegal to non-consensually store any and all forms of data transmitted by a cellular device given that the reach of Penal Code § 632.7 is far greater than Penal Code § 632. The latter only prohibits recordings of “confidential communications,” and therefore does not protect communications made in public or made where a party may “reasonably expect that the communication may be overheard or recorded.” Penal Code § 632(c).

By contrast, Penal Code § 632.7 has no similar restriction and even prohibits non-verbal forms of communications. Specifically, the statute prohibits non-consensual recording of a “communication,” which is broadly defined to include “communications transmitted by voice, data, image, or facsimile.” Penal Code § 632.7(c)(3). This broad stroke definition effectively makes liable every individual who stores on their smart phone text messages, voice messages, photos, social media posts, or other forms of communication sent by another person without that person’s consent.

It will be interesting to see how and if plaintiffs and defendants will utilize Penal Code § 632.7 moving forward. Conceivably, social media companies and other companies that fail to disclose any policies the company has of storing text messages or social media content with its users or customers may be vulnerable to class actions under the statute. Similarly, parties in a dispute may attempt to destroy key communications despite evidence preservation notices, claiming that such communications were erased to avoid criminal liability under Penal Code § 632.7. It is unclear if the legislature will preemptively cut off a potential floodgate of issues stemming from this expansive interpretation of Penal Code § 632.7, but it is unlikely the legislature will be able to do so fast enough before some creative parties attempt to enforce the literal scope of Court’s interpretation of the statute.