All Cell Phone Calls Need Consent Before Recording, California Supreme Court Rules

Want to record a phone call in California? You must get the other party’s permission if the call is made over a cell phone or wireless phone, a panel of California Supreme Court justices has ruled.

In a unanimous decision posted Thursday by Chief Justice Tani G. Cantil-Sakauye of the California Supreme Court, the justices overturned a 2019 ruling from an appeals court and sided with Plaintiff Jeremiah Smith.

The decision rules that the California Penal Code does require consent before recording a cell phone call, whether it is a call where a third-party is listening in, or a phone call between parties who are both aware the other person is on the call.

“We conclude that section 632.7 prohibits parties as well as nonparties from intentionally recording a communication transmitted between a cellular or cordless phone and another device without the consent of all parties to the communication,” Cantil-Sakauye said in the decision.

The case landed in the California Supreme Court after a years-long slog through the courts. 

Smith originally filed a class action lawsuit against loan provider LoanMe in 2016, alleging the company had recorded an 18-second conversation with him, without his consent. Smith said he only suspected the recording because he heard a “beep” on the line, the ruling notes. 

The class action sought to represent all California residents who had their cell phone conservations recorded without their consent by LoanMe. However a trial court sided with LoanMe, saying Smith should have known he was being recorded due to the “beep.” 

Smith appealed, and the Court of Appeal again sided with LoanMe. This time the court said section 632.7 only applies to “non-parties” on the call, and that once you take a call, you have consented to “the receipt of communications by each other,” so LoanMe did not violate the section.

However, Smith appealed again, and this time the court ruled in his favor. 

“Although parties might normally be regarded as consenting to the receipt of their communications by other parties to a call, this acquiescence would not, by itself, necessarily convey their consent to having these communications recorded,” Cantil-Sakauye wrote.

The justices moved to interpret the law in a way that further prioritizes the privacy of Californians.

“Recording a communication without the speaker’s consent can implicate significant privacy concerns, regardless of whether a party or someone else is performing the recording,” the ruling says.

Call recording laws differ from state to state. 

Some only require consent from one party on the call. However, if a business has calls coming in or out of all 50 states, then its call recording policy should reflect that by adhering to the strictest call recording laws in the country, which is California. For more on phone call recording and your rights, click here. 

Have you had a company record a phone conversation with you without asking for your consent to do so? Let us know in the comments. 

Smith is represented by Adrian R. Bacon of the Law Offices of Todd M. Friedman PC.

The LoanMe California Call Recording Case is Jeremiah Smith v. LoanMe Inc., Case No. S260391, in the California Supreme Court.

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