Last Updated on May 2, 2025
California is a two party consent state, meaning it is illegal to listen to other people’s conversations or record a conversation without the consent of all parties involved. California Penal Code section 631 (PC) prohibits wiretapping another person’s phone, while 632 (PC) prohibits eavesdropping and unauthorized recording —but there are exceptions to both of these laws. If you have been accused of violating either of these offenses, please call San Diego criminal defense attorney Peter M. Liss.
What is Wiretapping?
When most people hear the word “wiretap,” they envision police officers or FBI agents tapping the phone of someone they believe to be a criminal. But private citizens sometimes tap into phone lines to eavesdrop on others. Wiretapping may be done to gain confidential information from a rival company, stalk someone, see if a spouse is cheating, or obtain an advantage in an upcoming legal dispute.
Whatever the reason though, it is still illegal. While wiretapping has traditionally required hooking a device into a phone line, modern wiretapping also involves hijacking wireless cellphone signals or installing malware on someone’s phone to listen in on conversations or read text messages. Under California’s wiretapping laws, only law enforcement officials may tap someone’s phone without their permission —and even then, they must have a court order to do so.
Eavesdropping Definition Under California Law
While California law prohibits eavesdropping, it hasn’t made it illegal to overhear someone’s private conversations, as that would be impractical. Under California Penal Code section 632 (PC) though, it is unlawful to use an electronic device to record or amplify a conversation without consent of the two parties (or more) involved. The law covers both in-person and electronic (calls or web video) conversations you are involved with and those you are not part of, so you cannot legally use a recording device on your own phone calls in California unless you notify the other parties first.
So, for example, if you live in an apartment complex with very thin walls, it is not against the law to listen to a conversation between the people in the next apartment over. If you place a cup against the wall to hear them better, you’re still not breaking the law since you didn’t use an electronic device to overhear them. If you use a microphone to hear them more clearly or record their conversation though, you have violated the law.
Interestingly, while it is against the law to record someone’s conversation without permission in California, it is legal to record video footage of them in public as long as it does not violate their right to privacy in an area such as a changing room or restroom. For this reason, you don’t have to notify others if you have a dashcam in your vehicle unless it records audio.
When is it Legal to Record a Conversation Without Consent in California?
There are a few exceptions where it is legal to record a private conversation without consent in California. The first exception is when the victim could not reasonably expect privacy because they were in public. For example, viral videos of people spouting racist rants against someone else in a pool or playground are entirely legal. If someone had such a recording and it happened to be relevant to a trial, this would be entirely admissible as evidence.
The second exception occurs when someone records another party to collect evidence in a crime involving extortion, bribery, kidnapping, or a felony involving violence (including sexual violence) against someone else. This evidence can be brought to police as proof of a crime and can be used to provide grounds for arrest and the pressing of charges.
So, for example, when kidnappers call a victim’s family, the family could record these conversations and bring them to the police without needing to tell the caller they were being recorded. This evidence could then be used to prosecute the suspect in court. It could also be introduced in civil court if the family attempted to receive compensation for their emotional distress and any money they lost due to the incident.
When Can Police Record Calls?
Police need a court order to wiretap someone’s phone, eavesdrop on them, or record a private conversation. But the same exception that allows people to record calls to collect evidence in certain serious criminal cases also allows police to do so. This exception is why police often set up and record conversations between victims and their alleged suspects with the hope that the suspect will say something incriminating. These recordings are legal and do not require warrants or warnings to the suspect because the suspect has been accused of an applicable crime. On the other hand, the police cannot call someone and attempt to get them to confess to a lesser offense, such as shoplifting.
Along these same lines, “It is lawful for a victim who has the consent of law enforcement officers to record a conversation with a suspected criminal without their knowledge or consent,” notes Liss.
Interestingly, a court in California has allowed evidence of private conversation recorded with a ShotSpotter microphone, although this would normally seem to be a violation of the state’s wiretapping laws.
Can an Illegal Recording be Used in Court?
“Even if a suspected crime does not qualify as serious enough to permit an individual to record someone’s conversation without their consent, the resulting recording can still be used in court,” explains attorney Peter Liss. “But in these cases, the individual who made the recordings can still be charged with violating Penal Code 632 (PC), even if their evidence ends up being useful.” As long as the recordings are considered relevant to a criminal trial, they are admissible; however, illegally recorded conversations cannot be legally used in a civil trial.
What is the Penalty for Wiretapping and Eavesdropping?
Under 631 (PC) and 632 (PC), wiretapping and eavesdropping are wobblers, meaning these charges can be filed as a misdemeanor or a felony, depending on the specifics of the case and the defendant’s criminal record. As a misdemeanor, these crimes can result in a fine of up to $2,500 and up to one year in county jail.
On the other hand, as a felony, the penalties could be as high as 3 years in a state prison. You may even face a minimum fine of $10,000 if you have a similar crime on your record. In many felony cases, your criminal defense attorney may be able to convince the prosecutor to charge these crimes as a misdemeanor.
Fighting Wiretapping Charges
If you have been accused of breaking wiretapping or eavesdropping laws in California, or a similar crime, such as insider trading or stalking, contact a defense lawyer as soon as possible. “If you have been accused of a crime, please call my offices immediately and do not talk to the police without an attorney present,” says Liss. Please call (760) 643-4050 to schedule a free consultation with Mr. Liss to discuss your case.
