Every person on cell phone call must OK recording, court says

It is illegal in California to record a cell phone conversation without the consent of everyone on the line, the state Supreme Court says in a unanimous ruling that gives a boost to consumer lawsuits against phone solicitors.

California’s 1967 privacy law prohibits recording phone calls and other confidential conversations without consent. But a state appeals court ruled in December 2019 that a 1992 amendment to the law, banning clandestine recordings of calls on cell and cordless phones, applied only to thirdparty eavesdroppers and not to the caller or the person being called, who can tape either or both sides of the discussion without asking permission.

The state’s high court disagreed Thursday and said secret recordings of cell phone calls are illegal. Those who make such recordings can be prosecuted in criminal court and can also be sued for damages.

“Recording a communication without the speaker’s consent can implicate significant privacy concerns, regardless of whether a party or someone else is performing the recording,” Chief Justice Tani CantilSakauye said in the 70 ruling.

She noted that a state Senate committee staff analysis of the 1992 legislation said its main goal was “to provide a greater degree of privacy and security to persons who use cellular or cordless telephones.”

Those Californians should now be able to file classaction suits against companies that secretly record their sales calls, “the only way to protect people” against such intrusions, said Adrian Bacon, a lawyer for the plaintiff in the case. He said the ruling was “a major victory for consumer privacy.”

Bacon’s client, Jeremiah Smith, got a call on a cordless phone in 2015 from a lending company, LoanMe, that was trying to contact his wife. He said he told the caller that his wife wasn’t home, and the sales agent hung up in 18 seconds, without disclosing that the call had been recorded. Smith has filed a proposed class action on behalf of anyone in California who had received such a call in the previous year, seeking $5,000 in damages for each person whose call was secretly recorded.

A Superior Court judge said Smith should have known he was being recorded because the call included a beep three seconds after it started, though there were no words about a recording. The state appeals court did not address that issue and instead ruled that the 1992 law allowed a participant in a call to a cell or cordless phone to record it without consent.

The state Supreme Court rejected that conclusion Thursday and said both sides must knowingly consent to a recording. The justices returned the case to the appellate court to decide whether Smith had implicitly consented to being recorded by staying on the phone after he heard the beep.

A lawyer for LoanMe could not be reached for comment.