California Wiretapping Law (Penal Code 631)
Under California law, it is illegal to tap into a telephone wire with the purpose of listening in on someone’s conversation without their permission. That is, it is illegal to use an instrument that allows a person to make an unauthorized connection to a telephone line in order to intercept conversations, record conversations, or decode any messages (verbal or written) sent over a telephone line, cable line, or telegraph wire. The same law also prohibits the use or attempted use of any information obtained in this manner, or to assist anyone in doing so.
Prosecution of Violations of Penal Code 631
To convict you of wiretapping, the law requires that the prosecution prove that you engaged in any of the following prohibited acts:
- Using any kind of machine, device, or instrument to intentionally tap into, or make an unauthorized connection to, any telegraph, telephone, or cable line;
- Reading or attempting to read or learn the contents of any message passing over a telephone or other wire, willfully and without the permission of all of the parties to the message;
- Using or attempting to use or communicate any information gained in this way; or
- Aiding or conspiring with anyone else to do any of the above acts.
Notice that a key element in the crime of wiretapping is intent. You must have intended to make the unauthorized connection, or willfully obtain and read a message sent over a line that you did not have permission to read. This means that you should not be convicted of illegal wiretapping if the connection was inadvertent, or if the message was erroneously sent to you.
For example, if a person, while having a phone conversation with one person, suddenly finds that through some error by the phone carrier that they are able to hear someone else’s conversation, that person should not be convicted of wiretapping because he or she did not intend to use their telephone to intercept the call.
Examples of Wiretapping
People tap into others’ telephone communications for various reasons. Here are some of the more common examples:
- A man’s ex-wife threatens to prevent him from visiting the couple’s children unless he pays more child support. In an attempt to show proof, the man begins recording their phone conversations without the ex-wife’s knowledge.
- A girlfriend thinks her boyfriend is having an affair. She hires a tech-savvy friend to use a device to intercept and read the boyfriend’s text messages.
- A businessman, tired of being outbid by his competitor, hires someone to intercept the competitor’s fax line traffic and uses the information to discourage potential clients from hiring the competitor.
Punishments for Violating Penal Code 631
Wiretapping is a “wobbler” crime; meaning that it may be charged either as a misdemeanor or a felony. Misdemeanor violations are punishable by a maximum fine of $2,500, or imprisonment in the county jail for up to 364 days, or both. If convicted of felony wiretapping, the sentence can be between 16 months and three years in a county jail.
If the person has previously been convicted of a violation of this law, or of any of the related crimes listed below, the fine can be increased to $10,000, but the possible jail terms remain the same.
Exclusion of Recorded Evidence Under Penal Code 631
In addition to the above punishments, any recorded or intercepted communication that has been obtained by an illegal act of wiretapping is inadmissible as evidence in any court proceeding other than the criminal proceeding against the person who illegally obtained the communication.
So, in the above example of the man recording the threats made by his ex-wife, any recording he made of her statements without her knowledge and permission would not only make him criminally liable for wiretapping, but he would also be prohibited from using the recordings as evidence in a divorce or custody proceeding.
Crimes Related to Wiretapping
Several crimes share common elements with wiretapping, but are considered separate crimes:
Eavesdropping (Penal Code Section 632)
Both wiretapping and eavesdropping involve the act of intentionally listening to a conversation without consent. They also can involve using information gained from those conversations. The difference between wiretapping and eavesdropping is that wiretapping involves the invasion of a telephone line, cable, or telegraph. Eavesdropping merely requires that the defendant listen to a conversation by unauthorized use of an electronic device, such as a hidden microphone, or a hidden recorder.
Interception of a Cellular or Wireless Phone Call (Penal Code Sections 632.5, 632.6, and 632.7)
These days, many calls are not carried over landlines, but are instead carried through cellular, radio, or cordless communications. If a person intentionally intercepts a call between of cellphone, cellular radio, landline phone, or cordless phone, he or she can be convicted of this crime.
Trespassing for Purpose of Wiretapping or Eavesdropping (Penal Code Section 634)
Additionally, a person charged with wiretapping or eavesdropping may be charged for trespassing onto the property of another if he or she did so for the purpose of installing a wiretap or listening device.
Unauthorized Recording of a Person in Custody of Law Enforcement (Penal Code Section 636)
Under this section, it is a felony to record or listen in on the conversation between a person who is either in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law enforcement or other public agency, and that person’s attorney, religious adviser or licensed physician.
An example of this would be a prosecutor listening to a recording of a phone call between a suspect in police custody and his or her attorney, and then using that privileged communications against the suspect at trial.
Law Enforcement Exception
A law enforcement agency may obtain a court order to wiretap a person’s communications. The agency must convince a judge of the following:
- The agency has probable cause to believe that someone is committing, has committed, or is about to commit one of the serious felonies on this list:
- Serious drug crimes, such as the manufacture, possession for sale, selling, or transportation of more than three pounds or 10 gallons of heroin, cocaine, PCP, or meth;
- Murder, or solicitation to commit murder;
- Kidnapping involving ransom or extortion, or in order to commit robbery or rape;
- Certain felonies that involve explosives or other destructive devices;
- Acts of terrorism involving weapons of mass destruction or biological agents;
- Felony violations of related to gang activity; or
- Any attempt or conspiracy to commit any of the above crimes.
- There is probable cause to believe that the wiretap will actually lead law enforcement to overhear particular communications concerning the illegal activity;
- There is probable cause to believe that the place where the wire is located is being used or will be used to commit the crime, or else belongs to or is commonly used by the person whose communications will be intercepted; and
- Normal investigative procedures that don’t rely on wiretaps have been tried and have failed, or appear unlikely to succeed if they are tried, or will be too dangerous if they are tried.
Domestic Violence Restraining Order Exception
There is one other exception to the law against wiretapping. As part of a restraining or protective order sought by a person in relation to a domestic violence case, a court may grant that person the authority to record any communication that would violate the restraining order without the other person’s permission.
For example, suppose a woman seeks a restraining order following a violent argument with her boyfriend. As part of a restraining order requiring the boyfriend to refrain from telephoning the woman, the court could grant her permission to place a recording device on her phone for the purpose of recording any conversation or voice message that he initiates in violation of the order.
Defenses to Wiretapping Charges
The criminal defense attorneys at Wallin & Klarich have successfully developed several defenses to the charge of eavesdropping for our clients. Some of these defenses include:
- No Intent. You did not intend to overhear or record a private conversation.
- No device. You did not use a device to amplify or record a private conversation.
- Consent. You had consent from each of the parties involved in the private conversation.
- Protective order. You had a valid protective or restraining order and were recording a conversation involving the person who was violating that order as evidence of that violation.
Frequently Asked Questions Regarding Wiretapping Laws
- If I help someone hear, intercept, or record a private communication, can I be convicted?
Yes, it is illegal to help someone wiretap into a private wire conversation. California Penal Code 631 specifically says that anyone “who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any” form of intended wiretapping can be convicted with this crime and face the same punishments as the person who committed the wiretapping.
- Can I be convicted of wiretapping if my radio picks up my neighbor’s phone conversations?
No, one of the elements that the prosecution must prove beyond a reasonable doubt is “intent.” If you do not manipulate your scanner to purposefully intercept your neighbor’s phone conversations, then you should not be convicted of wiretapping. The same applies if nothing was actually recorded.
- I have a restraining order against my ex-spouse, and I recorded their communications with me to prove they were violating the terms of the restraining order. Can I be convicted of wiretapping?
California wiretapping laws make exception for intentionally recording the communications of someone who is violating a restraining order you had issued for protection against domestic violence. You can request that the restraining order includes terms that allow you to record communications that violate the order.
- I recorded a conversation about serious illegal activity. I plan on giving the recording to the police. Can I be charged with wiretapping?
You can be charged with wiretapping if you recorded a conversation without the consent of the parties involved. The information in the illegal recording would not be able to be used as evidence against the persons conducting the illegal activity. In fact, it would only be used as evidence against you for wiretapping.
Wallin & Klarich Can Help You Fight Charges of Illegal Wiretapping
If you have been charged with illegally wiretapping a telephone line, cable line, or telegraph wire, you are facing a legal battle with a potentially serious consequences. You need to hire an experienced and aggressive attorney. Contact the experienced criminal defense attorneys at Wallin & Klarich immediately.
With over 30 years of experience, the attorneys at Wallin & Klarich have the skills and knowledge to successfully defend you. We are committed to providing you with the personal attention you deserve and expect to help you overcome this difficult situation.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich are available 24 hours a day, 7 days a week to provide you with the very best legal advice. We will employ every available strategy to help you get the best result possible in your case.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free, no obligation telephone consultation or fill out our confidential contact form. We will get through this together.