Taping Telephone Talks May Be Illegal

Is it legal to tape record a telephone conversation without permission?

It depends. Let’s say you suspect your wife is having an affair with a neighbor. The phone rings and she takes the call in the privacy of the bedroom. You hear her whisper the neighbor’s name, so you pick up the extension in the den.

What you hear is conclusive proof of her infidelity. Neighbors simply don’t talk like this on the phone. You remain calm, almost lawyerly. You decide the evidence might be helpful in the divorce proceeding you now want to file, so you turn on a tape recorder to record the conversation.

Can’t Use Tape

Not only have you probably committed a crime punishable by a $2,500 fine and a year in jail, but you won’t be able to use the tape recording in court.

You wife or neighbor can also sue you for invasion of privacy and collect $3,000 or three times the amount of their actual damages, whichever is greater.

But what if you were talking on the telephone yourself and wanted to tape record a conversation? Do you need the other person’s permission?

Perhaps a business partner is suggesting a questionable accounting tactic, and you want to be able to prove later that it was not your idea. So you switch on your phone message recorder without telling anyone. That too may be a crime, in which case you won’t be able to use the tape as evidence either.

California’s Invasion of Privacy Act, first passed in 1967, was meant to protect ordinary citizens from unauthorized eavesdropping and telephone monitoring and recording. Most recently, it was amended to make it a crime to intercept a cellular car phone conversation without the permission of all parties. Under a California Supreme Court interpretation issued last year, the law even makes it illegal to eavesdrop from an extension telephone line.

The prohibition against tape recording conversations without the permission of all parties is found in Section 631 of the state Penal Code. It applies to in-person conversations, not just telephone conversations. However, the ban is not absolute. It only applies to “confidential communications”--those conversations carried on in circumstances where a person would reasonably believe that one of the parties expected the communication to be confidential, but not in a situation where you’d expect the conversation would be overheard.

Some Are Obvious

There are very few legal decisions interpreting what the legislature meant when it limited the rule to “confidential communications.” But some should be obvious. For instance, one court ruled that tape recording an incoming bomb threat to a police agency on an emergency telephone line was not illegal because it would be “ludicrous” to think that the bomb threat was a confidential communication.

Media Questions

Others have argued that a telephone conversation between a reporter and a news source or a radio disc jockey and a caller on a call-in program could not conceivably be confidential, because the participants know that what they say is intended to be broadcast or published.

The problem, if you are thinking of tape recording a conversation without the permission of the person on the other end, is that if you are wrong and a court decides that the conversation was “confidential,” you probably won’t be able to use the evidence on the tape in any court, legislative or other official proceeding.

There are several technical exceptions to the ban on tape recording, but one significant one you should know about has to do with possible criminal conduct. It is legal to record a “confidential communication” for evidence of the commission of the crimes of extortion, kidnaping, bribery or any other felony involving violence.

If you do plan to tape record a conversation, for business or pleasure, and the other party gives you permission, be sure to turn on the tape recorder and ask the person to give permission again, this time on tape, just in case that person later decides to deny giving permission in an effort to keep the tape out of court.