Recording Law for Family Law in California

California makes it a crime to record a ‘confidential communication’ unless every person taking part in the conversation agrees first. The law defines a ‘confidential communication’ as any exchange carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. That expectation can exist even in your own home. Penal Code § 632(a) makes it illegal to eavesdrop upon or record such a communication without the consent of all parties. The California Supreme Court in Flanagan v. Flanagan, 27 Cal.4th 766 (2002) confirmed the test is objective: whether a party to the conversation had an objectively reasonable expectation that the conversation was not being overheard or recorded. If the answer is yes, you need everyone’s okay before you press record.

California is unusual: secretly videotaping someone during a conversation can violate the same law that bans secret audio recordings. In People v. Gibbons, 215 Cal.App.3d 1204 (1989), a defendant hid a camera in his bedroom closet and recorded three women. The court ruled that the video recordings captured ‘communications’ and therefore fell under the all-party-consent statute. So even if you use only video and no audio, a hidden camera aimed at a conversation can still break the law if the other person did not agree to be recorded.

A conversation on a sidewalk or in a restaurant is not automatically fair game. California’s rule turns on whether the speakers had an objectively reasonable expectation their words were not being overheard or recorded in the moment, not on the location label. Flanagan v. Flanagan says the test is whether a party expected the conversation itself was private in the moment. If the speakers are talking loudly where bystanders can clearly hear, a court may find the parties reasonably expected to be overheard or recorded. But if they step aside, lower their voices, or say they do not want to be overheard, the conversation is likely still confidential and off-limits without consent. There is no bright-line rule—each setting must be judged on its facts.

You are generally allowed to photograph or record on-duty police officers performing public-facing duties in a public place or where you have a right to be. Penal Code § 148(g) provides: 'The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a) [of §632], nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.' The same bill added Penal Code § 69(b) to protect against separate charges like resisting an executive officer: 'This section does not apply to a person who makes a video recording of a public officer or peace officer in the course of the person's duties as a journalist, or to a person who makes a video recording of a public officer or peace officer while the officer is in a public place or the person is in a place the person has the right to be.' These statutes do not override other laws—such as trespass or obstruction—but they remove the wiretap-based risk when you record police in public.

Recording a confidential conversation without everyone’s consent is a ‘wobbler’—it can be charged as a misdemeanor or a felony. The law also allows the person you recorded to sue you for invasion of privacy in civil court. Separate statutes add additional risks: secretly recording someone in a bedroom, bathroom, changing room, or similar space where they have a reasonable expectation of privacy can trigger criminal charges under Penal Code § 647(j) and civil liability under Civil Code § 1708.8.

Imagine you and your ex are meeting at a quiet corner of a public park to exchange your child. You set your phone on the bench and start recording. Your ex objects and asks you to stop. In this situation, a court would likely find the conversation confidential because you both stepped aside from others and spoke at a normal volume. Recording without consent in that moment could implicate Penal Code § 632. If you had instead recorded while standing in the middle of the crowded playground where anyone could hear, a court might find the parties reasonably expected to be overheard or recorded and rule the recording lawful. The difference is the specific facts of the moment, not the label of the place.

California does not recognize a home exception to its all-party consent rule. A private conversation inside a home is the paradigm example of a protected ‘confidential communication’ under Penal Code §632(c), which defines such communications as exchanges carried on in circumstances indicating any party desires it to be confined to the parties. People v. Gibbons, 215 Cal.App.3d 1204 (1989) arose from exactly this fact pattern: the defendant secretly videotaped three women in his own bedroom with the door closed and curtains drawn, and the Court of Appeal affirmed his conviction. Separately, Penal Code § 647(j)(1)-(3) criminalizes secretly viewing or recording a person inside a bedroom, bathroom, changing room, or similar space where they have a reasonable expectation of privacy, and Civil Code § 1708.8(l)(1)(D) provides civil liability for such activity on residential property. Practical bottom line: being ‘at home’ does not default the law to a lower-consent mode.

California regulates biometric and voiceprint data through the California Consumer Privacy Act as amended by the California Privacy Rights Act (CCPA/CPRA), which classifies ‘biometric information’ as a category of ‘sensitive personal information.’ Cal. Civ. Code § 1798.140(c) expressly includes voice recordings and voiceprints within the definition of biometric information, and § 1798.140(ae)(2)(A) treats biometric information processed to uniquely identify a consumer as sensitive personal information. This triggers notice-at-collection duties under § 1798.100(a) and a consumer right to limit use of the voiceprint under § 1798.121, implemented through Cal. Code Regs. tit. 11, § 7027. Enforcement is primarily administrative via the California Privacy Protection Agency under § 1798.155 (penalties up to $2,500 per violation, up to $7,500 per intentional violation or violation involving a minor under 16) and civilly by the Attorney General under § 1798.199.90. A private right of action exists only for data breaches under § 1798.150, and only where failure to maintain reasonable security procedures leads to unauthorized access or disclosure of specifically enumerated ‘personal information’ as defined in § 1798.81.5(d)(1)(A). The statute’s biometric example in § 1798.81.5(d)(1)(A) is limited to unique biometric data generated from measurements of human body characteristics such as a fingerprint, retina, or iris image used to authenticate a specific individual, and voice is not listed among the examples. Whether a voiceprint used to authenticate a specific individual falls within that definition remains an open question.