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Conviction for Recording Confidential Communications?
Article I, section 1 of the California Constitution explicitly deems privacy an inalienable right. It declares: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
Brief Synopsis: Recording a prostitute’s communications and conduct in a private home is illegal, as such conversations are confidential and entitled to privacy protections. Such protection is not waived by the communication being within the scope of employment.
In 1967, the California Legislature enacted Penal Code § 632 as part of the California Invasion of Privacy Act (Privacy Act), to address concerns that ‘advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society.” Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377, 1388.
Section 632, subdivision (a) imposes criminal liability on “[every] person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication . . . “ A “video recorder is an instrument which, if used in the manner proscribed under section 632, is a recording device for purposes of the privacy act.” People v. Gibbons (1989) 215 Cal.App.3d 1204, 1208.
This law has created quite a few interesting interpretations over the years. For example, in limited circumstances, under certain facts, recording a conversation that reasonably could be expected to be overheard can be privileged and not a violation of the privacy act. However, this is a nuanced area that is quite fact specific.
These subtleties in the law have invited some novel claims of privileged recording and the following case exemplifies a bad decision by man who thought he enjoyed a privilege to record when he did not.
Court of Appeal Third Appellate District SacramentoIn 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.
For more information about pretext calls, recording calls and police questioning, please click on the following articles:
