With few exceptions, it is generally illegal to record a phone call in the state of California without informed consent from all parties on the call. Throughout its 170-year history, the Golden State has taken privacy issues very seriously and has severe penalties for those who violate the state’s privacy protection laws, specifically the California Invasion of Privacy Act.

California Recording Laws

California’s state constitution considers personal privacy to be an inalienable right – in other words, one that is natural and cannot be surrendered, sold or otherwise transferred to another party. This includes phone call recording laws, which have been revised and updated over the years to reflect changes in communications technology.

California is what is known as a two-party consent state. This means that in order to record a phone call legally – including a private conversation – there must be consent from all involved parties. Specifically, California recording laws apply to confidential communications in which at least one of the participants has an “objectively reasonable expectation” of privacy.

Phone call recording laws in California also apply to the use of hidden video cameras. This question was determined in 1989 when a male defendant was charged and put on trial for covertly videotaping his sexual encounters with three different women. In an appeal of State of California v. Gibbons, the judge ruled that although the text of the law did not refer to specific devices, it did cover the manner in which a device was used – in this case, for the purpose of making secret recordings of private communications.

In the United States, call recording laws vary from state to state. California has some of the strictest state laws governing call recording and monitoring in the United States. In general, the state has very strict laws around consumer privacy.

Other two-party consent states include:

Connecticut
Florida
Hawaii
Illinois
Maryland
Massachusetts
Montana
Nevada
New Hampshire
Pennsylvania
Washington

Even laws among two party states can vary, so it is important to be aware of the laws in your specific state.

What if I Record a Phone Call or Conversation in Public?

This depends on the circumstances. When recording a conversation in a public place such as a restaurant, park or shopping mall, the other party may not have an objectively reasonable expectation of privacy. Nonetheless, California recording laws apply to “confidential communications,” so it cannot automatically be assumed that you are acting lawfully when you record a phone call or other conversation in public.

Are There Any Exceptions to California Recording Laws?

If you are in law enforcement and are acting in the course of a criminal investigation, it is permissible to make secret recordings of phone calls and conversations involving suspects. Another exception is made for journalists and other citizens who attend a court proceeding. Small, inconspicuous recording devices may be used for the purpose of taking notes. However, this can only be done legally with the permission of the court. Furthermore, journalists who plan on making video recordings of court proceedings are required to file official media coverage request forms at least five days ahead of time.

Other official meetings open to the public may also be recorded, provided these activities do not disrupt the proceedings.

What Is the Difference Between Call Recording and Monitoring?

Customers should be aware that businesses may not just record a phone call, but they may monitor a call. California law places similar restrictions on several actions around communications privacy.

You may have encountered call recording or monitoring without realizing it. If you have been on a call with a customer service representative, there is a high chance that you have been recorded or monitored. Businesses use these techniques for a number of purposes, from improving customer experience to training employees.

The majority of US customers have contacted customer service by phone at some point in their lifetime. This means that most US customer have likely had a phone call recorded or monitored.

To record a call legally, businesses have to ask for consent to record the call. In many customer service calls, you may be informed at the top of the call that the conversation may be recorded or monitored. In most customer service call scenarios, if you choose to remain on the call after you receive that notice, then this can be taken as consent given to be recorded.

Plaintiff Magazine speaks to the issue of how consumers encounter call recording. If you are uncomfortable with the possibility that a customer service representative might record a call, you may have some options. If you are uncomfortable being recorded during your customer service interaction, you may be able to request that the customer service representative not record the call. Not all businesses will oblige, but some may. Customers who do not want to risk being recorded may choose to send their injuries via email. Customers should keep in mind that business emails and exchanges with a customer service representatives are likely subject to monitoring and review.

If you are adamant that you do not want to be recorded, but still have to conduct business through customer service, you may want to visit the business in person. This way, you may be more likely to be able to conduct businesses in a confidential setting. However, you may still be recorded via video camera, as many businesses have security cameras in place for the safety of employees and customers alike.

Mindsight explains that there are multiple ways in which a call can be monitored, known as “listen,” “whisper” or “barge.” These techniques allow other staff members to contribute to a phone call with a customer, either by listening to the conversation, providing help that the customer cannot hear, or taking over the call in a way that the customer can hear. These customer service practices may be used in combination with call recording, to help a business improve processes.

How to Record a Phone Call Legally

Recording a telephone conversation without running afoul of the law is quite simple: all that is required is that you inform the other party up front that the conversation may be recorded (this is why most businesses include this announcement when communicating with customers over the phone). The other party may refuse permission by simply hanging up. If they remain on the line after being informed, this is considered implied consent.