Can You Secretly Record a Conversation? 

Office Address:
Law Office of David P. Shapiro
3500 5th Avenue
Suite 304
San Diego, CA 92103
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Hi, Stefano Molea, senior criminal lawyer, and partner at the Law Office of David P. Shapiro, where we help good people regain control of the future when charged with a crime. Are you allowed to secretly record a private conversation? The answer is no. Doing so could result in felony or misdemeanor charges in some cases. Under Penal Code Section 632, also known as the eavesdropping statute, it is a crime to intentionally record a confidential conversation without the consent of the person speaking. So what's confidential? It's really circumstantial. It's confidential if there's an objective expectation that the conversation would be private. If it's a phone call it's presumed confidential, so no recording of phone calls without everyone's consent. Notice when you get those messages, when calling companies that say something like, "This call may be recorded for quality assurance purposes." That's the idea. Placing a recording device in someone's office or bedroom, for example, would also very likely violate this law.
But what if everyone is outside in public? In this broad scenario, we are moving closer to the no objective expectation of privacy, but it's not a bright-line rule. There could be facts that would make a public conversation still private enough to get in trouble with PC 632. There are some exceptions to this rule found in PC 633.5 and other laws. For example, PC 632 does not prohibit recording a confidential conversation for the purpose of obtaining evidence, reasonably believed to relate to the commission of another ... of the crime of extortion, kidnapping, bribery or any felony involving violence. Also, and this is very common in cases where there are allegations of sexual misconduct, a private person can record a conversation if at the direction of law enforcement. It's also allowed if a judge allows it as part of a protective order, and of course police can record the conversation. Hope this overview was helpful. Have any questions? Give me a call. Stefano Molea, criminal defense lawyer in San Diego, 619-295-3555.