Monday, December 23, 2019
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Court of Appeal:
Penal Code Section Doesn’t Bar Recording Phone Call
Opinion Says 1992 Law Pertaining to Conversation Where Cell Phone or Cordless Phone Is Used by One or Both Parties Is Aimed at Third-Party Eavesdroppers, Only; However, 1967 Ban Is Intact
By a MetNews Staff Writer
A California Penal Code section that renders it a crime to record a conversation without the consent of the other party where either the caller or recipient is using a cell phone or cordless phone is a prohibition only applicable to third parties, Div. Two of the Fourth District Court of Appeal held Friday.
The opinion deals specifically with §632.7, enacted in 1992, but applies with equal force to §632.5 and §632.6, Justice Frank J. Menetrez said in his opinion which affirms the dismissal by Riverside Superior Court Judge Sharon J. Waters of a putatrive class action against a lender, LoanMe, Inc. A footnote spells out that the prohibition on surreptitious recordings in §632, enacted in 1967, does apply to recordings by parties.
The defendant recorded a brief conversation with plaintiff Jeremiah Smith without his consent. Waters held that a “beep tone” at the start of the conversation gave Smith a warning that what was said was being recorded, but the appeals court came up with its own theory.
“We conclude that section 632.7 prohibits only third party eavesdroppers from intentionally recording telephonic communications involving at least one cellular or cordless telephone,” Menetrez wrote. “Conversely, section 632.7 does not prohibit the participants in a phone call from intentionally recording it.”
Sec. 632.7 is contained in the Cordless and Cellular Radio Telephone Privacy Act of 1985, a subpart of the Invasion of Privacy Act. It provides that “[e]very person who, without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone, shall be” subject to spercified penalties.
Sec. 637.2 creates a private cause of action for violations of the Privacy Act.
Menetrez reasoned:
“Section 632.7 imposes liability on any person ‘who, without the consent of all parties to a communication, intercepts or receives and intentionally records’ a communication involving a cellular phone or a cordless phone. The statute thus requires that the interception or receipt of the communication be without the parties’ consent. But the parties to a phone call always consent to the receipt of their communications by each other—that is what it means to be a party to the call (or at least that is part of what it means). In this case, for example, LoanMe consented to Smith’s receipt of LoanMe’s communications (‘Is Mrs. Smith there?’), and Smith consented to LoanMe’s receipt of Smith’s communications (‘No.’). Consequently, the parties to a phone call are incapable of violating section 632.7, because they do not intercept or receive each other’s communications without all parties’ consent.”
Menetrez said the same reasoning applies to §632.5 which proscribes the malicious and unconsented interception of cell phone calls and §632.6, a mirror provision applicable to cordless phone calls. The jurist noted:
“[S]ection 632.7 differs from sections 632.5 and 632.6 in that it (1) removes the element of malice, (2) adds the element of (nonconsensual) intentional recording, and (3) covers both cellular phones and cordless phones in a single code provision.”
He pointed out that there “are no California cases interpreting sections 632.5, 632.6, and 632.7” and he repudiated federal decisions that are contrary to Fridat’s holding.
The footnote related to §632 says:
“The requirement that the alleged wrongdoer intercept or receive the communication without all parties’ consent distinguishes sections 632.5, 632.6, and 632.7 from section 632, which also contains a consent requirement but applies it to different conduct. Section 632 provides that ‘[a] person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication’ shall be punished by a fine, incarceration, or both. (Italics added.) Although parties to a phone call always consent to each other’s receipt of their communications, they do not always consent to the use of an electronic amplifying or recording device to eavesdrop upon or record the communication. It is consequently unsurprising that section 632 can apply to the parties to a communication.”
Another footnote mentions that whether the recording by LoanMe violated Smith’s right to privacy under the California Constitution would not be discussed because such an encroachment was not raised by the complaint.
The case is Smith v. LoanMe, Inc., 2019 S.O.S. 4407.
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