Conviction for Recording Confidential Communications?

In explaining the facts of this case, People v. Michael J. Lyon (2021 DJDAR 1816), the Third Appellate District stated: “Defendant is a repeat offender. In March 2011 he pleaded guilty to four counts of eavesdropping on or recording confidential communications (Penal Code § 632(a)). These convictions were based on the secret videotaping of prostitutes at his residence. The trial court imposed, but suspended execution of a two-year sentence and placed him on probation for five years.”

In October 2014, a search of numerous electronic devices seized from defendant’s residence revealed that, in 2013 and 2014, defendant had engaged in sexual relations with prostitutes at his residence and had secretly recorded these encounters. The women were not aware that they were being recorded and never gave defendant permission to do so. The women learned about the recordings after the search. The videos captured both words and real time images.

In November 2015, the People filed an information charging defendant with 16 counts of eavesdropping on or recording confidential communications. In April 2018, the jury found Mr. Lyon guilty of six counts of violating Penal Code § 632(a) and, two counts of disorderly conduct (Penal Code § 647(j)(3)(A). The judge sentenced Mr. Lyon to six years four months in state prison.

Mr. Lyon appealed, arguing that a prostitute’s communications during outcall prostitution activities at a client’s residence were not protected as “confidential communications” under Penal Code § 632 because prostitutes have no reasonable expectation of privacy at their “workplace, “ i.e., client’s residence.

The Third Appellate District ruled that a person’s participation in sexual activities at a private residence in exchange for money, without more, did not necessarily cause them to expect that their words and actions will be secretly recorded. Moreover, prostitution activities at private residences do not strip prostitutes of their right to control the firsthand dissemination of their words and images. Lastly, the appellate court explained that the general expectation of privacy in a person’s residence during intimate acts was not relinquished simply because a prostitute was involved. Thus, prostitution activities are protected as “confidential communications” under § 632.

We present this summary to exemplify the failed attempt to record another person under the pretext that the activities are illegal and thus cannot enjoy confidentiality. We repeatedly hear clients claim they can record private conversations with no criminal exposure if the other person is engaged in a crime.

The citation for the Third Appellate District Court ruling discussed above is People v. Michael J. Lyon (3rd App. Dist., 2021) 61 Cal. App. 5th 237, 275 Cal. Rptr. 3d 581.

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