Recording Law for Recording in Public in California

California makes it a crime to intentionally eavesdrop upon or record a ‘confidential communication’ without the consent of all parties to the communication. This all-party consent rule applies whether the conversation occurs face-to-face, over the telephone, or through any other electronic means. California courts have extended this rule to hidden video recordings when the video captures the conversation itself. The statute defines a ‘confidential communication’ as any communication 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. A public street or sidewalk does not automatically remove that expectation. If someone lowers their voice, moves away from others, or makes any move that suggests they want the conversation kept private, the law treats it as confidential and the all-party rule applies. The rule comes from California Penal Code §632(a) and the California Supreme Court’s decision in Flanagan v. Flanagan, 27 Cal.4th 766 (2002), which construes the statute.

A ‘confidential communication’ under Cal. Penal Code §632(c) means any exchange where at least one party reasonably expects it is not being overheard or recorded. The statute itself excludes three situations from the definition: conversations made in a ‘public gathering,’ in open government proceedings, or in any other circumstance in which the parties may reasonably expect that the communication may be overheard or recorded. Outside those clear exceptions, courts look at the specific facts. For example, a quiet conversation between two people on a crowded sidewalk may still be confidential if they speak softly and there is no one close enough to hear. The Flanagan court said the test is objective: would a reasonable person in the speaker’s position believe the conversation was private at that moment?

California is unusual: secretly videotaping someone during a conversation can violate §632 even if the audio is muffled or inaudible. In People v. Gibbons, 215 Cal.App.3d 1204 (1989), a court upheld a conviction where a man hid a video camera in a bedroom closet and recorded sexual encounters with three women in his own bedroom, door closed, curtains drawn. The court said the statute covers both audio and video when the recording captures a ‘communication.’ This means pointing a hidden camera at two people talking—even if they don’t know it—can be illegal unless everyone in the conversation consents.

A private home does not create a recording exception in California. In fact, the opposite is true: a closed-door conversation in a home is the classic example of a confidential communication under §632(c). California has three overlapping laws that protect home privacy: Penal Code §632 (all-party consent for confidential communications), Penal Code §647(j)(1)-(3) (criminalizing secretly viewing or recording a person inside a bedroom, bathroom, changing room, or similar space where they have a reasonable expectation of privacy, with intent to invade that privacy, and expressly providing that the defendant’s status as a cohabitant, landlord, tenant, cotenant, employer, employee, or business partner is not a defense), and Civil Code §1708.8(l)(1)(D) (further singling out any activity that occurs on a residential property under circumstances in which the plaintiff has a reasonable expectation of privacy as protected ‘private, personal, or familial activity’ for civil liability). Courts have applied §632 to secret recordings made in a bedroom with the door closed and curtains drawn, exactly as in People v. Gibbons. If you’re recording where someone has a reasonable expectation of privacy, assume the law requires consent.

California has a direct statute that protects recording on-duty police officers in public. Penal Code §148(g), added by SB 411 (Stats. 2015, ch. 177, approved by the Governor Aug. 11, 2015), eff. Jan. 1, 2016, 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.’ This law is separate from §632 and applies even if the officer is speaking to you. Because on-duty police performing public-facing duties are not engaged in ‘confidential communications’ under §632(c), the all-party consent rule does not apply to such exchanges.

Imagine you’re sitting in a coffee shop with a friend and you decide to record your conversation on your phone. Your friend doesn’t know you’re recording. Even though the shop is open to the public, the law treats your exchange as confidential because you’re speaking at normal volume in a relatively quiet corner. Under Cal. Penal Code §632(a), this is an all-party consent situation—your friend’s agreement is required. If you hide a small camera in your bag and it captures both of you talking, that could also violate the law under People v. Gibbons, 215 Cal.App.3d 1204 (1989), where a court upheld a conviction for secretly videotaping sexual encounters in a closed bedroom with the door closed and curtains drawn, even if the audio is hard to hear. The same rule applies if you’re on a sidewalk having a quiet conversation with a coworker—lowering your voice or moving away from others doesn’t automatically make it public. When in doubt, ask first.