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Hidden Perils of Audio Recording
MCLE Self Study

Hidden Perils of Audio Recording
By Michael J. Niborski

Edited by Barbara Kate Repa

Your client played private detective and tape-recorded conversations to help the case. Now, instead of the routine denials or hazy memory you usually face at deposition and trial, you have the proverbial smoking gun-tape-recorded conversations-to use theatrically and compellingly during the lawsuit. You're relieved that the case just got a whole lot stronger. But you may be wrong.

First Stop: Federal Wiretapping Law
Your first stop upon learning that tape-recorded conversations exist should not be the evidence code but the penal code, specifically Title 18, Crimes and Criminal Procedure. There you will find Chapter 119, the Wire and Electronic Communication Interception and Interception of Oral Communications Law.

Section 2520 of Title 18 creates a private right of action for anyone whose wire, oral, or electronic communication is intercepted by a civilian-a right that must be pursued within two years of when the person should reasonably know about the interception. The relief available is broad, including equitable and declaratory relief, damages, punitive damages, and reasonable attorneys fees and costs. Damages are the greater of actual damages suffered by the plaintiff plus profits made by the violator or statutory damages (which are the greater of $100 per day for each day of the violation or $10,000). When these damages are combined with the possibility of punitives, attorneys fees, and costs, it may add up to substantial financial harm.

If the possibility of fines in a civil action is not a sufficient deterrent, there is also a provision for incarceration should law enforcement authorities decide to pursue a criminal action. (18 U.S.C. § 2511(4)(a)(b).) A first-time offender whose violation was not for a tortious or illegal purpose or for commercial gain may be imprisoned for up to one year. Other offenders may be imprisoned for up to five years.

Because both wire and electronic recording implicate interstate commerce in ways that bugging oral conversations does not, the Legislature separates the private action between wire and electronic on the one hand, and oral on the other hand. Section 2511(1)(a) is triggered if wire or electronic communications are recorded. Recording oral conversations comes within section 2511(1)(b), providing that a separate interstate commerce element is satisfied when the:
1. recording device transmits a signal or communication through wire, cable, or radio
2. recording device or its components are transported in interstate commerce
3. use or attempted use takes place at any business or is for the purpose of obtaining information relating to the operations of a business that affects interstate commerce, or
4. acts occur in the District of Columbia or any other U.S. territory or possession.
A person whose communications are intercepted may bring a civil action against the person who intercepted them or anyone who disclosed or used the recording knowing it was captured illegally.

There are two primary defenses available to the typical client-turned-undercover agent. Section 2511(2)(d) provides that if one party to the conversation consents, the recording does not violate the law provided that the communication is not intercepted for the purpose of committing any criminal or tortious act. Therefore, a client who has the consent of one of the parties to the recording-most often that is your client who has recorded the conversation in the first place-is safe unless he or she acted for a criminal or tortious purpose.

Many plaintiffs have shaken their fists in the air and demanded restitution for being tape-recorded by another party. What they overlook is that, under federal law, it is not enough for the defendant to have made the tape recordings. It is not even enough for the tape recordings to be actionable under another statute. The purpose of the interception-its intended use-must be criminal or tortious. (Payne v. Norwest Corp., 911 F. Supp. 1299, 1304 (D. Mont. 1995); Sussman v. American Broad. Co., Inc., 186 F.3d 1200, 1202-3 (9th Cir. 1999).)

Consider the case of Beverly Deteresa, a United Airlines flight attendant who worked the flight taken by O. J. Simpson to Chicago in the hours after Nicole Brown Simpson and Ronald Goldman were murdered. Deteresa claimed that ABC and one of its producers had violated the federal wiretapping statute by recording a conversation with her. She claimed that the defendants had committed crimes and torts by the taping. The court held that this argument begged the question. For her claim to survive, Deteresa had to come forward with evidence to show that the ABC producer taped the conversation for the purpose of violating the California Penal Code, for the purpose of invading her privacy, or for some other tortious or criminal purpose. Since the record lacked any such evidence, the court granted summary judgment in favor of the defendants. (Deteresa v. American Broad. Co., Inc., (121 F.3d 460, 467 (9th Cir. 1997).)

Courts have recognized that even a person who does not have an expectation of total privacy may still be legally protected if there was an objectively reasonable expectation that a conversation would not be recorded. (Bianco v. American Broad. Co., Inc., 470 F. Supp. 182, 185 (N.D. Ill. 1979).) If a person did not reasonably know that others could overhear a conversation, or had a right to exclude others while conversations took place, the standard of objective reasonableness is most likely satisfied. (Kemp v. Block, 607 F. Supp. 1262, 1264-65 (D. Nev. 1985).) However, if the recorder heard the conversations unaided by a mechanical amplifying device and from an uncontrived position-for example, someone yelling in an adjacent room with the door open-then the circumstances may not justify an expectation of privacy.

Second Stop: California Penal Code
The California Invasion of Privacy Act (Cal. Penal Code §§ 630-637.5) imposes a stricter standard than the federal statute, requiring the consent of all parties to the conversation prior to recording. Like the federal statute, California law gives the aggrieved party a private right of action against the violator. Section 637.2 provides that a violation of the law may result in civil penalties of $5,000 per violation or three times the amount of actual damages, whichever is greater. Like the federal law, injunctive relief is available. But unlike the federal law, there is no provision for punitive damages or attorneys fees or costs.

As with the federal law, only confidential communications are subject to protection. Until recently there was a stark disagreement in California about the definition of confidential communication. The California Supreme Court recently resolved the conflict in Flanagan v. Flanagan (27 Cal. 4th 766 (2002)). In that case, the court held that a conversation is confidential only if a party has an objectively reasonable expectation that it is not being overheard or recorded. The court reasoned that this provides more protection from surreptitious recording, in keeping with the spirit of the Legislature's intent in enacting the law.

California's Invasion of Privacy Act also allows for criminal penalties and incarceration. Under section 632(a), the first violation can result in a fine of up to $2,500 and imprisonment of up to a year. Subsequent violations can result in a fine of up to $10,000 and imprisonment of up to a year.

Third Stop: Common Law Invasion of Privacy
Apart from statutory considerations, tape-recording conversations can fall under the common law invasion-of-privacy theory of intrusion into seclusion. Such recordings can be deemed an invasion of privacy-as an act of prying or intruding on the private affairs or seclusion of another in a way that would be highly offensive to a reasonable person.(See, Shulman v. Group W. Prod., Inc., 18 Cal. 4th 200, 232 (1998); Sanders v. American Broad. Co., Inc., 20 Cal. 4th 907, 915, 923 (1999).) The likelihood of a recording rising to that level hinges on the degree of the conduct. Courts consider whether the person being recorded had an objectively reasonable expectation of seclusion or solitude, not of complete or absolute privacy.

This often turns on the location of the recorded conversation-home, hotel room, or private place versus open office or public place-and the degree to which the recording constitutes an invasion: using a simple tape recorder versus a high-powered recording device. These same considerations factor into the offensiveness of the recorder's conduct. A person recording in a private location for prurient or purely financial interests is more offensive than an undercover investigative journalist recording in a semipublic place attempting to expose corruption.

For example, in Miller v. National Broad. Co., an NBC television crew entered a person's apartment without his consent to film paramedics called to administer lifesaving procedures after he had suffered a heart attack. NBC also used the film on the nightly news without his consent. The court concluded that reasonable people could find NBC's conduct in filming a man's emergency medical treatment in his home, without seeking or obtaining his or his wife's consent, as showing "a cavalier disregard for ordinary citizens' right of privacy" and therefore highly offensive. (187 Cal. App. 3d 1463, 1484)(1986).) Similarly, in Shulman v. Group W. Productions, Inc., television producers videotaped and broadcast a documentary showing a person's rescue and transportation to a hospital by a medical helicopter. The court concluded that a reasonable jury could find the producers' conduct highly offensive, as they had placed a microphone on a medical rescuer to intercept what would otherwise be private conversations with an injured patient. (18 Cal. 4th at 200 (1998).)

However, in Wilkins v. National Broad. Co., Inc., two Dateline NBC producers met with representatives of a communications company and videotaped their conversation over lunch using hidden cameras. The court held there was no offensive intrusion into the representatives' privacy because the representatives spoke freely about their programs while other individuals stood near them; they did not conduct themselves as though they were dispensing private information; they admitted providing the same information to many other potential investors; there was no entry into their homes or offices; and there was nothing about their personal lives, intimate relationships, or private affairs. (71 Cal. App. 4th 1066 (1999).)

Keep in mind that surreptitious audio recordings implicate more than just statutory penalties. Common law invasion of privacy carries with it the possibility of general damages and injunctive relief, as well as the specter of punitive damages.

A Legal Twist: Interstate Recording        
Whether a client who lives in a state in which tape recording is legal can be liable for placing and recording a call to someone in California is an unresolved question. On one hand, California case law is silent on the issue, with only legislative analysis for guidance. On the other hand, there are issues of conflict of laws and federal preemption.

California Penal Code section 632 does not specifically state whether it governs recordings made by an out-of-state caller of an in-state recipient. However, an argument can be made that section 632 does not apply because other California statutes governing taping of conversations do specifically prohibit such conduct, and because the legislative history of section 632 implicitly acknowledges that no such prohibition exists.

California Penal Code section 631(a), which is also part of California's Invasion of Privacy Act, is entitled "Wiretapping" and expressly applies to "any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state." Similarly, section 653m(d), which deals with telecommunications but is not part of the same act, proscribes annoying or harassing phone calls. It states: "Any offense committed by use of a telephone may be deemed to have been committed where the telephone call or calls were made or received." Sections 631 and 653m both expressly deal with the effect of extraterritorial phone calls. They are instructive for what they say when compared with what section 632 does not say-that liability may be imposed for recording phone calls made from another state to California. Section 632 makes no mention of prohibiting such conduct, while the Legislature was clearly aware and comfortable with that concept in two other related provisions.

California's rules of statutory construction limit the extraterritorial effect of penal statutes. As stated in People v. Hsu: "Statutes must be construed in light of the general principle that, ordinarily, a state does not impose punishment for acts done outside its territory." (82 Cal. App. 4th 976, 985 (2000), citing People v. Buffum, 40 Cal. 2d 709, 716 (1963).) By way of example, the Hsu court recognized that since the statute addressing distribution of lewd matter to minors (Cal. Penal Code § 288.2(b)) made no reference to place of performance, "courts must assume the Legislature did not intend to regulate conduct taking place outside the state."(40 Cal. 2d at 716.) Rules of statutory construction likewise limit the breadth with which a penal statute may be construed. In the words of one court: "Penal statutes will not be made to reach beyond their plain intent; they include only those offenses coming clearly within the import of their language." (Keeler v. Superior Court, 2 Cal. 3d 619, 631-32 (1970).)

It also can be argued that the legislative history of section 632 implicitly acknowledges it has no extraterritorial effect. The author of the Invasion of Privacy Act, then-Speaker of the California Assembly Jesse M. Unruh, discussed this in a 1968 letter to the Boalt Hall Law Review. In it, he contemplated writing a measure that would "cover one loophole in the original bill." (California Assembly Bill 860, Invasion of Privacy Act, ABF/Unruh 6:3(10)B(17) (1967).) That measure, according to the letter, would add the following language to section 632(d): "No evidence obtained as a result of ... recording a confidential communication in any other state ... which if obtained in this state would have been obtained in violation of this section shall be admissible in any ... proceeding." Thus, those who created the protection afforded by section 632 contemplated extending that protection to cover recording from outside California. The fact that the Legislature chose not to include that language then-or at any time since-provides some evidence of legislative intent.

There is also an argument that calls placed across state lines come under federal jurisdiction, and therefore the federal wiretapping statute would preempt state law. One California court recently addressed the issue of interstate recording and applied a conflict-of-law analysis to the issue. The court did make reference to the possibility of a preemption argument, but it never reached the issue. (Kearney v. Salomon Smith Barney, Inc., 117 Cal. App. 4th 446 (2004).) With no clear answers, the safest strategy for now may be to assume that the stricter law applies.

Michael J. Niborski is an associate in the Los Angeles office of Stroock & Stroock & Lavan, concentrating on entertainment and First Amendment litigation, with a specialty in defamation and privacy law.

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