Review of PC 631 Wiretapping Laws, Penalties and Best Defenses
California Penal Code 631 PC is the statute often used by prosecutors to charge someone with the crime of wiretapping.
This statute makes it illegal to use a recording device to tap directly into somebody's phone line to listen to their private communications.
Wiretapping is a “wobbler” offense that can be charged as either a misdemeanor or a felony, which carries a maximum jail sentence of up to 3 years.
In the state of California, there is a “two-party consent” law that means both parties have to give consent to record a conservation.
While the crime of wiretapping is not common, there are cases where people will illegally record telephone conservation. In most cases, it's an attempt to discover private information or gain an advantage in a situation.
Put simply, while law enforcement can legally use wiretaps in criminal investigations, it's a crime for private citizens to tap someone's phone line.
You may have a compelling reason to tap into another person's communications—if you suspect that the person is planning to harm you, for example. Nevertheless, wiretapping is generally a crime.
Our Los Angeles criminal defense lawyers will take a closer look at the wiretapping laws below.
What Does California Penal Code 631 PC Define as Wiretapping?
California statutes classify illicit wiretapping as an “Invasion of Privacy.” Penal Code 631 PC defines wiretapping as follows:
- “Anyone who, using any machine, instrument, or contrivance, or other manner, intentionally taps or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, with any telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system….”
Wiretapping laws apply to those who willfully and without consent learn the contents or meaning of any communication in transit or passing over any wire, or is being sent from any place in the state of California.
You may also face wiretapping charges if the state identifies you as someone “who uses or attempts to use...any information” obtained in any fashion listed above.
What are the Prohibited Activities?
Wiretapping may include many different types of prohibited activities, such as:
- Using a physical “bug” to intercept someone's phone conversations;
- Using remote software to intercept phone conversations, text messages, and other communications;
- Obtaining and disseminating private communications as a “prank;”
- Downloading call recording software and recording telephone conversations without the other party's knowledge;
- Using any type of machine or instrument to intentionally tap into, or to make an unauthorized connection to a telephone line;
- Reading or attempting to read the contents of a message that was passing through a telephone line or another wire, without consent;
- Aiding or conspiring with someone else to accomplish any acts above.
You cannot legally record a conversation in California without all parties first being aware of the recording.
As noted, the state's two-party consent law means that you may be charged with wiretapping for making a recording without the other party's knowledge.
Cell Phones and Cordless Phones
The traditional landline phones are quickly becoming obsolete, but it's also a crime to intercept calls on a cell phone or a cordless phone.
California Penal Code 632.5 PC prohibits intercepting a call from a cell phone or cordless phone if you maliciously and without consent intercept or receive communications transmitted between cellular telephone landlines.
If convicted, you will be facing the same penalties as Penal Code 632 PC eavesdropping.
California Penal Code 632.6 PC prohibits intercepting or receiving communications between a cell phone or landline phone and a cordless phone. This statute also carries the same penalties as eavesdropping.
Put simply, if you intercept a call between cell phones, cordless phones, a cell phone or cordless phone and a landline phone, with criminal intent and without permission from both parties on the call, you could be charged, convicted, and facing the same legal penalties you would face for tapping a traditional regular phone line.
What Are the Legal Penalties for Wiretapping?
As noted, wiretapping qualifies as a “wobbler,” which is a crime that a prosecutor can file as either a misdemeanor or felony.
The details of your alleged wiretapping, your criminal record (or lack thereof), and the prosecutor's discretion may determine the severity of any charges you face.
For a misdemeanor wiretapping charge, you may face:
- A fine of up to $2,500,
- A county jail term of up to one year.
For a felony wiretapping charge, you may face:
- Up to three years in jail,
- A fine of up to $2,500.
Prior convictions related to wiretapping could exacerbate your sanctions. You may face a higher likelihood of incarceration and a fine of up to $10,000 if you have prior convictions for offenses listed in Chapter 1.5 of the California Penal Code (Invasion of Privacy).
Any evidence that may have been acquired through illegal wiretapping can't be used in any court proceeding.
Further, if you were accused of the crime of wiretapping, you could potentially face a civil lawsuit by the victim as defined under California Penal Code 637.2 PC.
Offenses Related to Illegal Wiretapping
California offenses related to wiretapping and include the following:
- Penal Code 632 PC – eavesdropping,
- Penal Code 637(j) PC – invasion of privacy,
- Penal Code 591 PC – malicious injury to telephone equipment.
Eavesdropping may apply most directly to wiretapping. California Penal Code 632 PC applies to “anyone who, intentionally and without permission of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication…”.
Recording someone's phone calls or in-person conversations without consent may lead to a charge of eavesdropping.
The criminal penalties for eavesdropping are the same as those for wiretapping, as eavesdropping is also a “wobbler” offense.
Possible Defenses to a Wiretapping Charge
Your defense will depend on the facts of your case. Your attorney may refute or mitigate a charge of wiretapping by arguing that:
- You intercepted electronic communications by accident, not intentionally,
- The party whose communications you intercepted agreed to the recording or sharing of their communications,
- How you engaged in wiretapping or eavesdropping did not meet the legal definition of either offense,
- Lack of intent to overhear private conservation,
- You did not use a device to record or amplify private conservation,
- Conservation occurred in a public setting.
Other defenses may apply and may result in dismissal or reduction of your charges. Through prefiling intervention, we might be able to negotiate with the prosecutor to avoid the formal filing of charges.
If you were accused of a crime from evidence obtained in a wiretap, it might be appropriate to file a motion to suppress evidence as defined under Penal Code 1538.5 PC.
This type of motion is common to exclude police evidence that violated California search and seizure laws.
What If You Are a Victim of Illicit Wiretapping by Law Enforcement?
Law enforcement officials have broader wiretapping rights than private citizens—still, they must go through proper channels to implement and maintain a wiretap.
For a wiretap to be legal, law enforcement agencies must generally:
- Have probable cause to suspect certain felonious criminal activity,
- Have reason to believe that a wiretap could help capture evidence of felonious criminal activity,
- Exhaust other less intrusive measures before requesting a wiretap,
- Show ongoing proof of criminal activity that justifies continued use of the wiretap,
- Obtain a court order.
Per California law, it may be a misdemeanor or felony for peace officers to violate wiretapping laws. Illegal wiretapping practices may also affect the outcome of any criminal proceeding that involves the illegal wiretap.
Eisner Gorin LLP is based in Los Angeles County and you can reach us for an initial consultation by calling (877) 781-1570, or by filling out our contact form here.
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