SMITH v. LOANME - S253783

The Court (Cantil-Sakauye, C. J.) holds that it is illegal for a person to record a phone call without the consent of all parties where one of the phones is a cell phone.

Penal Code section 632, the Legislature prohibited all recording of "confidential" communications without the consent of the parties.

In the 1980's people started talking on cordless phones and then cell phones. Cordless and cellular phones use radio waves to work.  This means that, without security features, a third party can listen-in on a cordless or cellular telephone call, just as anyone can listen to broadcast music using an AM/FM receiver.  When I picked up a cordless phone as a kid, there were times that it picked up a neighbor's conversation.

Because of this, the calls might not be considered "confidential" anymore.  To address this, the Legislature first prohibited the “malicious” interception or reception of these radio-based phone calls.  (Pen. Code, § 632.5, Pen. Code, § 632.6).  The Legislature explained it did not intend “to prohibit use of electronic scanning devices, or radios, capable or intercepting or receiving radio frequencies . . . nor to prohibit the interception or reception of radio frequencies other than the unauthorized malicious interception or reception." 

In 1991, a constituent wrote a letter to Assemblyman Connelly and identified what he considered a gap in the statutory scheme.  Because of the nature of cordless and cell phones, he was concerned a third party could “non-maliciously” receive cellular or cordless telephone communications and then record them.  He accepted that a cordless or cellular radio phone may be “inadvertently overheard because of the use of radio,” but believed it should be illegal for these third parties to record the received communication. 

To address this issue, Assemblyman Connelly introduced AB2465 to add Section 632.7.  He explained that “innocent, merely curious, or non-malicious interception of cellular or cordless telephone conversations will remain legal.  However it will be illegal to record the same conversation.”  (Connelly, Lloyd G, Author’s Statement of Intent re:AB2465.)

Penal Code 632.7 provides:

(a) Every person who, without the consent of all parties to a communication, intercepts or receives and intentionally records [a phone call involving a cell phone or cordless phone ] shall be punished by a fine . . . .

In addition to criminal penalties, a person can be sued for illegally recording a call--$5000 per call.  (Penal Code § 637.2.)

The Court reasoned that while section 632.7 could be interpreted in more than one way, it applied to parties to the call because of the overall purpose of the Legislature is to protect privacy interests.  

While I do not disagree with the Court's sentiment, or find the outcome to offensive, I think the Court (and the appellate court below) was not presented with a significant argument that points the other way.

When enacting Sections 632.5 and 632.6, the Legislature used the word “receive” and “reception” with its radio-related meaning.  The Legislature stated, “It is not the intent of the Legislature to . . . prohibit the interception or reception of radio frequencies other than the unauthorized malicious interception or reception of cordless telephone radio frequencies.”  When passing Section 632.7, the Legislature again used “receive” and “intercepts.”  The world “receive” was used so that it would apply to curious third-party radio hobbyists.  Giving “receive” its radio-related definition is consistent with the language of the statute and the Legislature’s intent, which was to prevent third parties from maliciously listening in, or recording calls.  

If the Legislature wanted to apply 632.7 to parties to a call, they could have simply left out "intercepts or receives and"  The words are superfluous.

But the more narrow meaning of "receive" was not considered.  It was just assumed that parties to a phone call "receive" that phone call.