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In California, two-party consent recording law requires that consent be obtained by all parties before recording phone calls. I've pasted relevant parts of this law below.

Further, subsection (d) of the same law establishes that any evidence obtained without such consent is "not admissible in any judicial, administrative, legislative, or other proceeding" except when used as evidence for violations of this law. But given the wording of the law and precedent established since (Flanagan v. Flanagan, California v. Gibbons, and so on), does stating a strict purpose of the recording preclude later use of the recording for unrelated legal evidence?

When you call a corporate customer support line and hear, "this call is being recorded for training purposes", can the company then use the recording as evidence in court, with no relationship between "training" and the use of the recording?

California Code, Penal Code - PEN § 632

(a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record 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) per violation, or imprisonment in a 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) per violation, by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

(b) For the purposes of this section, “person” means an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

(c) For the purposes of this section, “confidential communication” means 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, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.

  • Breach of contract comes to mind; but such a breach does not render recording "without consent". – user6726 Dec 5 '18 at 20:01
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Subdivision A of California Penal Code 632 protects confidential communication:

(a) A person who, intentionally and without the consent of all parties to a confidential communication...

Subdivision C defines confidential communication and excludes:

...any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

In Flanagan v. Flanagan the opinion specifically mentions the exception in subdivision C:

The second clause of [Penal Code] section 632[, subdivision] (c) goes on specifically to exclude communications ‘made in a public gathering ․ or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.’

The crux of Flanagan v. Flanagan is that a conversation must have an expectation of confidentiality in order for Penal Code 632 to apply and any conversations where the parties "reasonably expect that the conversation may be overheard or recorded," are, by definition, not confidential.

This previous answer on a similar question also highlights the California Civil Jury instructions which require that the plaintiff had a "reasonable expectation that the conversation was not being overheard or recorded."

The People v. Gibbons case in California was a case where a defendant argued that Penal Code 632 didn't apply to surreptitious video recording of his sexual activity with his partner. The court found that it did.

  • So what role does stated purpose of the recording hold in such a situation, if the company in question freely gives a singular purpose for collecting such a recording? – TheEnvironmentalist Dec 5 '18 at 19:44
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    The answer I provided is just that 632 doesn't provide any protections for a conversation that is not confidential. As far as this law is concerned the company can pretty much do anything they want with a recording of a non-confidential conversation. There's the potential for a contractual or privacy obligation any particular company owes to the people on the recorded conversations but it seems that such obligations would be specific to a given company and the contractual obligations they have to a given customer. Perhaps looking at California customer/corporate privacy laws would help. – Dave D Dec 5 '18 at 20:19
  • What about other conversations that are swept up? For example, let's say you're on the phone with a company and the conversation is being recorded. Your spouse comes into the room and says something bad about the neighbors. Your spouse probably has an expectation that the statement to you is confidential and, unaware that you're on a recorded line, doesn't know that the statement was recorded. Does the company legally recording your conversation with them have a new obligation because of an incidental capture of your spouse's statement? Did you have an obligation to warn your spouse? – Dave D Dec 5 '18 at 20:32

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