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Los Angeles, California

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Helen Zukin
Helen Zukin
Contributor •

Wire Tapping Right to Privacy Law

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Californians have a right to privacy. Two party consent is required before phone calls or other communications can be recorded or monitored. Failure to obtain consent will result in civile damages of either $5,000 per occurrence or three times actual damages which ever is greater.

Over the years we have handled several cases involving private individuals and companies engaged in recording conversations without the express permission of the party OR parties to the call. California, like many states, requires TWO party consent to record telephone calls. Consent can be in the form of a recording (we have probably all heard) “this call may be monitored OR recorded for quality assurance purposes.” Consent can also be given directly. While engaging in a financial transaction with a bank it is quite common for the banker to ask, “may I record your instructions?” Absent two party consent, in the State of California, the recording party is subject to civil damages of either $5,000 per call or three times actual damages which ever is greater. The California Supreme Court in the case ofr Kearney v. Salomon Smith Barney, Inc. ruled on July 13, 2006 that even out of state companies where only ONE party consent may be required in their home state when calling California the company MUST comply with California law. In otherwords a Georgia based company, where only one party consent is necssary, calling California, must have two party consent before record the call.

Out-of-state callers may not surreptitiously tape record telephone conversations with people in California, the state Supreme Court decided unanimously Thursday.

The high court said that California privacy law forbids such taping without permission even if the calls were recorded in a state that allowed it. California is one of 11 states that prohibit such recordings without the consent of all parties.

Bottom line for corporate America is be careful where you call. We have an expectation of privacy in our communications both on the phone and in person that requires CONSENT and without it there will be liability. Kiesel Boucher & Larson LLP has recovered millions of dollars from companies who have violated this policy.