Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

California

Current status

California is an “all-party state” when it comes to interception of communications, meaning that all parties to a confidential communication must give their consent to be recorded, whether it is face-to-face conversation, wire or electronic communication. Additionally, the state also has an “anti-paparazzi” law to protect individuals’ right to privacy, as well as a specific anti GPS tracking law.

Impact of law

California is a very protective state when it comes to individual privacy.

California’s state law requires unanimous consent from all parties to any confidential communication, prior to recording or intercepting that communication. The statute only applies to “confidential” communication, defined 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” and specifically excludes any “circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded”.

California’s law also specifically addresses GPS tracking, making it illegal to use an electronic tracking device to determine the location or movement of a person, except with the consent of the registered owner, lessor, or lessee of a vehicle.

Additionally, California’s “anti-paparazzi” law classifies as invasion of privacy any attempt to capture people in personal or familial activity, where they have reasonable expectation of privacy, without their consent.No evidence obtained illegally shall be admissible in court, except to prove the actual eavesdropping act.

References to Physical TSCM

The law specifically refers to eavesdropping “by means of any machine, instrument, or contrivance, or in any other manner”, as well as “making any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise” in order to acquire the contents or meaning of any form of communication. Additional sections address conversation recording, GPS trackers, video recording, as well as purely physical means to invade one’s privacy, such as opening sealed envelopes addressed to others or trespassing on other’s property.

References to Cyber TSCM

As previously specified, the law refers not only to eavesdropping by means of devices, but also to eavesdropping by means of “instruments” or “contrivance”, as well as in “any other manner”. We interpret this last term as the lawmaker’s intention to comprise all possible means of eavesdropping, including cyber methods.

Criminal implications

Under California law, violations of the eavesdropping law shall be punished by a fine up to $2,500, or up to one year in jail, or both. If the person has previously been convicted similar violations, the fine can rise up to $10,000.

Civil implications

In California, any person who has been a victim of eavesdropping may bring a civil action against the person who committed the violation, and receive compensation in the greater of either $5,000 or three times the amount of actual damages. For invasion of privacy crimes, a perpetrator is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000)

Code excerpts

Cal. Penal Code 631-638 [1]
631. (a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment in the county jail or pursuant to subdivision (h) of Section 1170. If the person has previously been convicted of a violation of this section or Section 632, 632.5, 632.6, 632.7, or 636, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.

 

  1. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording
    device, eavesdrops upon or records
    the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

(c)The term “confidential communication” includes 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.

(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

  1. Any person who trespasses on property for the purpose of committing any
    act, or attempting to commit any act, in violation of Section
    631, 632, 632.5, 632.6, 632.7, or 636 shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), by imprisonment in the county jail not exceeding one year or in the state prison, or by both that fine and imprisonment. If the person has previously been
    convicted of a violation of this section or Section 631, 632, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year or in the state prison, or by both that fine and imprisonment.
  1. Every person not a party to a telegraphic or telephonic communication who
    willfully discloses the contents of a telegraphic or telephonic message
    , or any part thereof, addressed to another person, without the permission of that person, unless directed so to do by the lawful order of a court, is punishable by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment.

637.2.
(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:

  • Five thousand dollars ($5,000).
  • Three times the amount of actual damages, if any, sustained by the plaintiff.

637.7. (a) No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person.

(b) This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.

(d) As used in this section, “electronic tracking device” means any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals.

(e) A violation of this section is a misdemeanor.

  1. (a) Any person who purchases, sells, offers to purchase or sell, or conspires to purchase or sell any telephone calling pattern record or list, without the written consent of the subscriber […] shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both a fine and imprisonment. If the person has previously been convicted of a violation of this section, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by both a fine and imprisonment.

(b) Any personal information contained in a telephone calling pattern record or list that is obtained in violation of this section shall be inadmissible as evidence […]

Cal. Civil Code 1708.8 [2]

(a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another person without permission or otherwise committed a trespass in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.
(b) A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.

(c) An assault or false imprisonment committed with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to subdivisions (d), (e), and (h).

(d) A person who commits any act described in subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section […] A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).

(l) (1) For the purposes of this section, “private, personal, and familial activity” includes, but is not limited to:

(A) Intimate details of the plaintiff’s personal life under circumstances in which the plaintiff has a reasonable expectation of privacy.

(B) Interaction with the plaintiff’s family or significant others under circumstances in which the plaintiff has a reasonable expectation of privacy.

(D) Any activity that occurs on a residential property under circumstances in which the plaintiff has a reasonable expectation of privacy.

(E) Other aspects of the plaintiff’s private affairs or concerns under circumstances in which the plaintiff has a reasonable expectation of privacy.

 

 

[1] Source:   http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=630-638

[2] Source: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1708-1725