Kearney v. Salomon Smith Barney: How California Decided Whose Recording Law Applies on an Interstate Call

California makes it illegal to record a conversation unless every person taking part agrees first. The law is found in Penal Code §632 and covers phone calls, video chats, and in-person talks. The rule’s goal is to protect people’s reasonable expectation that their private words won’t be captured without notice. When a call travels across state lines, California courts don’t automatically apply the other state’s rule—they ask which law gives the stronger privacy shield. Because California’s all-party-consent rule is stricter than many other states, it often ends up controlling when a California resident is on the line.

California’s rule only applies to “confidential communications.” That term is defined in Penal Code §632(c) as any exchange where a party has an objectively reasonable expectation the conversation isn’t being overheard or recorded. The statute also spells out three places where the rule doesn’t apply: communications made in a public gathering, in an open legislative/judicial/executive/administrative proceeding, or in any other circumstance where the parties may reasonably expect to be overheard or recorded. Courts ask whether the speakers showed any signs they wanted the exchange shielded—like lowering their voice, moving away from others, or saying they didn’t want to be recorded. If they did, the conversation is confidential even in a home. The California Supreme Court put it this way in Flanagan v. Flanagan: a conversation is confidential if a party has an objectively reasonable expectation that the conversation is not being overheard or recorded. That test is the key to whether California’s all-party-consent rule applies.

When a call crosses state lines, California courts don’t simply pick one state’s law at random. Instead, they apply the rule that offers the stronger privacy protection. Because California requires all parties to agree before recording, it is often the more protective law compared with states that only require one-party consent. Practically, this means if you’re in California and record a call without getting everyone’s okay, you risk violating §632, regardless of where the other person is located.

California courts have repeatedly held that the state’s stronger privacy rule generally controls when a call involves a California party. The Flanagan v. Flanagan decision confirms that California’s all-party-consent rule applies whenever a conversation qualifies as a “confidential communication,” regardless of where the other party is located. This approach aligns with California’s broader goal of giving people robust control over whether their private conversations are recorded.

California’s rule isn’t absolute. It only applies to “confidential communications,” so conversations in truly public settings or open government proceedings fall outside the law. The statute also carves out specific exceptions for certain serious crimes, like extortion or kidnapping, where law enforcement can record without consent. Courts also look at whether the speakers showed any signs they wanted privacy—like moving to a quiet corner or lowering their voice—even in a public place. Inside a home, the opposite is true: Penal Code §632(c) defines a private conversation inside a home as the paradigm of a “confidential communication,” and People v. Gibbons confirms that courts treat closed-door home settings as heightened-confidentiality environments. The California Supreme Court’s decision in Flanagan v. Flanagan confirms that a party’s objective expectation the conversation isn’t being overheard or recorded is what matters, not whether the content later stays secret.

Imagine a sales rep in New York calls a California client to pitch a product. The rep records the call without telling the client, believing New York’s one-party-consent law allows it. Under California’s interstateCalls standard, this recording likely violates §632 if the call qualifies as a “confidential communication,” because the call involves a California party and California’s all-party-consent rule is generally stricter than one-party-consent states. Even though the rep is in New York, California’s more protective law would govern. The client could sue under §632, and the rep could face penalties.

For businesses operating in California, the safest approach is to treat every call that involves a California party as subject to California’s all-party-consent rule, regardless of where the other person is, under the interstateCalls standard. This means getting clear, affirmative consent from everyone on the call before recording. For individuals, the rule applies even in your own home because Penal Code §632(c) defines a private conversation inside a home as the paradigm of a “confidential communication,” and People v. Gibbons confirms that courts treat closed-door home settings as heightened-confidentiality environments. If you’re unsure whether a call is confidential, assume it is—California’s law is strict, and courts look at whether a party had an objectively reasonable expectation the conversation wasn’t being overheard or recorded. When in doubt, ask first.