Statutory Provision

The Invasion of Privacy Act, enacted in 1967 with subsequent amendments, is encoded at Penal Code § 630, et seq. It prohibits wiretapping, and also bars a person from recording a conversation with another absent the other person's knowledge and consent. (Penal Code § 632.)

The qualifier is that it applies only if the call includes a "confidential communication," which has been defined to be where a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768.) “There is no service-observation exception for recording... recording a call for "Quality Control" is not exempt from the Privacy Act.” (Knight v. Cashcall (2011) 200 Cal. App.4th 1377, 1392-93.) There is no exception even if the monitoring is for a legitimate business purpose.

“Whether there exists a reasonable expectation that no one is secretly recording or listening to a telephone conversation is generally a question of fact.” (Kearney v. Salomon-Smith Barney, Inc. (2006) 39 Cal.4th 95, 118 n.10; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 169.)

Confidential Communication Defined

“We also find support for the Frio definition of "confidential communication" in the actions of the Legislature when it amended the Privacy Act to take account of privacy issues raised by the increased use of cellular and cordless telephones.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 775 examining Sec. 632.5, added by Stats. 1985, ch. 909, § 3, at 2902; Sec. 632.6, added by Stats. 1990, ch. 696, Sec. 4, at 3269; Sec 632.7 ...) “In enacting the first of these amendments, the Legislature found that ‘the advent of widespread use of cellular radio telephone technology means that persons will be conversing over a network which cannot guarantee privacy in the same way that it is guaranteed over landline systems.’” (Id. citing Stats. 1985, ch. 909, Sec. 2, at 2900; similar language as to cordless telephones appears in Stats. 1990, ch. 696, § 2, p. 3268.) (Id. at 776 ) “Responding to the problem of protecting the privacy of parties to calls involving cellular or cordless telephones, the Legislature prohibited the malicious interception of calls from or to cellular or cordless phones (Secs. 632.5, 632.6) and the intentional interception or recording of a communication involving a cellular phone or a cordless phone.” (Id. citing Sec. 632.7.)

Wiretapping — Invasion of Privacy/Violations of Penal Code sections 631(a), 632(a) and 632.5(a)

Penal Code section 631, subdivision (a): any person who, by means of some mechanical device or contrivance, “intentionally taps, or makes any unauthorized connection with,” inter alia, a telephone instrument, or who willfully, and without the consent of all parties to the communication, learns the contents of any communication while it is passing over any wire, line, or cable, or attempts to use any information so obtained, violates the statute.

Penal Code section 632, subdivision (a): anyone who “intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, violates this statute. (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 161.)

Penal Code section 632.5, subdivision (a): anyone who “maliciously and without the consent of all parties to the communication, intercepts, receives, or assists in intercepting or receiving a communication transmitted between cellular radio telephones or between any cellular radio telephone and a landline telephone” violates this statute.

Under Section 632.7 (applicable to recording, listening to cell-phone communications), enacted in 1992 all that is required there is a nonconsensual invasion. No requirement for a "confidential" communication.

Penalties

The law provides a civil remedy of $5,000 in liquidated damages for each violation. (Penal Code § 637.2.) There does not have to be any disclosure to a third party to trigger the statutory liability; the invasion itself is sufficient. (Flanagan, supra at 775.) Actual damages are not a prerequisite to bringing suit for a violation of §§ 632, 632.7.

Wiretapping and the Common Law Tort of Intrusion

“To establish the common law tort of intrusion, a plaintiff must plead and prove ultimate facts establishing:

1. The defendant intentionally intruded into a place, conversation, or matter as to which the plaintiff as a reasonable expectation of privacy; and
2. The intrusion occurred in a manner highly offensive to a reasonable person.”

(Hernandez v. Hillsides, Inc. (2009) 47 Cal .4th 272, 286)

“Of the four privacy torts identified by Prosser, the tort of intrusion into private places, conversations or matter is perhaps the one that best captures the common understanding of an ‘invasion of privacy.’” It encompasses unconsented-to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 230–31 citing Rest.2d Torts, § 652B, com. b., pp. 378–379, and illustrations.)