For the lawyers in the hangar....

deafsound

deafsound

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A friend of mine has been having problems with the father of her son and said she wants to record their conversations to keep a record in case the doggy doo hits the fan. I am pretty sure that that's illegal unless she tells him and he consents to the conversation.

I looked here:
http://www.rcfp.org/taping/
for some info, but I'm slightly confused.

further info:
She will be taping their phone calls via speaker phone and a tape recorder.
She lives in CA.

Thanks all.
 
It's going to depend on the CA state law. I'm pretty sure in Michigan you can tape a conversation w/o the other person's consent IF YOU ARE PART OF THE CONVERSATION. You can't be a 3rd party to it and tape it.
 
Not a lawyer, but a bit familiar on "wiretapping" law...

First of all, your friend probably (had) a lawyer for custody situations and it is best that she shell out a one-hour consultation fee to run it past him/her...

That said, interstate telephone conversations >should< defer to the Federal law that allows recording of conversations so long as one party consents (usually the recorder.) HOWEVER, state judges and law enforcement officials don't always agree with that premise B) Nothing so cut and dried as saying that state law where the recording took place applies either, as at least one state court decided that the law where the alleged injury took place (where the so-called victim of the recording was located) was controlling :(

As she is in California, which generally requires all parties consent, I would advise her to be extremely careful. Her choices IMHO are to inform the gentleman that she is recording the call, and get that part on tape too, each time, or to take detailed written notes each time they talk, which can be just as useful if issues ever have to go to court. More useful that many people believe.

Editorial: I think that all-party consent laws are asinine, perfect examples of throwing the baby out with the bath water. I should have reasonable assurances that a third party is not 1) listening in, or 2) recording private conversations between me and a second individual. But one should be able to legally record conversations that you are a party to! If you can record it in your brain, you should be able to record it on media!

OK, rant over.
 
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That's sort of what I gathered too (from EDFRED's post), but I'm still a little unclear.
AKFLYER....thanks for the info. What are the penalties for not getting consent each and every time? Any clue?
If it helps to narrow this down, she lives in the San Diego area.

Thanks all.
 
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deafsound said:
That's sort of what I gathered too (from EDFRED's post), but I'm still a little unclear.
AKFLYER....thanks for the info. What are the penalties for not getting consent each and every time? Any clue?
If it helps to narrow this down, she lives in the San Diego area.

Thanks all.
Click to expand...

Not a lawyer either, but my guess would be that at a minimum the recordings would not be admissible in court and at most she could be subject to a civil suit filed by the other party.
 
deafsound said:
What are the penalties for not getting consent each and every time? Any clue?
Click to expand...
That's spelled out pretty clearly in the link you provided, under the "state by state guide." Interestingly, if she could meet him face to face in a public place, she would be free to have a hidden tape recorder on her person and use it without penalty. It is the "telephone" aspect that renders the expectation of privacy to the other person.
 
deafsound said:
AKFLYER....thanks for the info. What are the penalties for not getting consent each and every time? Any clue?


Thanks all.
Click to expand...

Well, for one thing, the recording would not be admissible in any hearing or other legal proceeding, so she would be wasting her time in recording it. Secondly:

...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 in the state prison, or by both a fine and imprisonment
in the county jail or in the state prison.
 
Ken Ibold said:
That's spelled out pretty clearly in the link you provided, under the "state by state guide." Interestingly, if she could meet him face to face in a public place, she would be free to have a hidden tape recorder on her person and use it without penalty. It is the "telephone" aspect that renders the expectation of privacy to the other person.
Click to expand...
Well, if it's "telephone", I wonder if something like VoIP or other internet-based technology might skirt the issue?
 
gprellwitz said:
Well, if it's "telephone", I wonder if something like VoIP or other internet-based technology might skirt the issue?
Click to expand...

"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"
 
Ken Ibold said:
Interestingly, if she could meet him face to face in a public place, she would be free to have a hidden tape recorder on her person and use it without penalty. It is the "telephone" aspect that renders the expectation of privacy to the other person.
Click to expand...

Actually, not in California:

"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 radi"
 
alaskaflyer said:
"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"
Click to expand...
Well there you go! In this police state:), one no longer has an expectation of privacy. Therefore, ipso facto, no conversation is confidential, and the statute does not apply!:rofl: OTOH, if it is confidential, then the internet-based technologies would be covered.:mad:
 
alaskaflyer said:
Actually, not in California:

"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 radi"
Click to expand...
Guess we need a real CALIFORNIA lawyer to research this ...

However, a television network that used a hidden camera to videotape a conversation that took place at a business lunch meeting on a crowded outdoor patio of a public restaurant that did not include "secret" information did not violate the Penal Code's prohibition against eavesdropping because it was not a "confidential communication." Wilkins v. NBC, Inc., 71 Cal. App. 4th 1066 (1999).
Click to expand...
In a public place there is no reasonable expectation that there is a "confidential communication."
 
Ken Ibold said:
Guess we need a real CALIFORNIA lawyer to research this ...


In a public place there is no reasonable expectation that there is a "confidential communication."
Click to expand...

Hmmm...interesting. Rather a stretch. If I lean over and whisper in your ear in the restaurant does it then become "confidential"...even before the kiss? :p
 
Would it be covered if notice was given by certified mail that all conversations are subject to recording from a date certain forward? The letter would further indicate signed receipt of delivery would acknowledge the letter and no further notice would be made. Lastly, it would indicate such recordings may be used in legal proceedings.

It's just a thought. If that works, it's a given that an irrational party is going to blast off with diarrhea of the mouth without ever considering prior notice of recording. Then, you've got it covered.

But, don't let the same recording come back and bite the hand that made it. One can easily cut their own throat, legal or not.
 
deafsound said:
A friend of mine has been having problems with the father of her son and said she wants to record their conversations to keep a record in case the doggy doo hits the fan. I am pretty sure that that's illegal unless she tells him and he consents to the conversation.

I looked here:
http://www.rcfp.org/taping/
for some info, but I'm slightly confused.

further info:
She will be taping their phone calls via speaker phone and a tape recorder.
She lives in CA.

Thanks all.
Click to expand...

I don't know a thing about recording conversations, but I sure hope the two adults can stay cool and keep the child out of the middle of their dispute. Seen way too much of that over the years.


Trapper John
 
deafsound said:
A friend of mine has been having problems with the father of her son and said she wants to record their conversations to keep a record in case the doggy doo hits the fan. I am pretty sure that that's illegal unless she tells him and he consents to the conversation.

I looked here:
http://www.rcfp.org/taping/
for some info, but I'm slightly confused.

further info:
She will be taping their phone calls via speaker phone and a tape recorder.
She lives in CA.

Thanks all.
Click to expand...
Really,

If it's this bad - where note taking won't suffice - then when he calls say, "I'm recording this call, if you don't consent, hang up." The other alternative is to simply tell him you need everything in writing - i.e. if he has anything to say, send a letter.

In reality, even if he agrees to taping the conversation, the chances of a tape recording being admitted into (almost any) family court are slim...

My best advice (and this is from my personal experience): If it isn't spelled out in the custody agreement don't consent to any changes that aren't in writing.

P.S. I'm not a lawyer. Didn't sleep at a Holiday Inn Express either... But I have had more than my fair share of this ... well ... crap. :eek:
 
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Not sure where I heard this, but I remember one time hearing about people that were fighting bill collectors. They would call to be totally abusive to the people that they were collecting from. One of the things that they found that worked is to say it in a very joking manner. "Yeah yeah yeah. Well, this call may be monitored for my protection <laugh>" If you can say it in a way that is totally serious but get the person on the other end to think that you're joking around, it still serves as notice.

Oh, yeah. IANAL. Don't take this as legal advice...blah blah blah.
 
Trapper John said:
I don't know a thing about recording conversations, but I sure hope the two adults can stay cool and keep the child out of the middle of their dispute. Seen way too much of that over the years.


Trapper John
Click to expand...

Chances are, it won't get too out of hand, but she's trying to make sure all of her bases are covered.
 
Thanks for your responses.
I more or less understood the link I provided, but just wanted to check in with people who are more intelligent than I am (who is just about everyone here), as I tend to misunderstand things that I read from time to time.
The info has been passed along to my friend, and hopefully she'll stay out of trouble.
 
If it's an "all parties" state (and CA is, as I recall) and you tape without all parties giving consent, then you violated that state's wiretapping laws... criminal, not civil... and the punishment will be whatever applies to those laws.

In other IOW, tell her to "not". :no:

And that applies to interception of ANY communications - voip, in person recording, telephone, cell phone, keystroke logger, email.... any of 'em.
 
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What if you have em on speakerphone, and say "hey, you're on speakerphone" does that eliminate the expectation of privacy?
 
It's not letting someone else hear it - you can legally let someone listen in on your handset, as far as I afaik, but it's the RECORDING of the thing that's the problem
 
etsisk said:
It's not letting someone else hear it - you can legally let someone listen in on your handset, as far as I afaik, but it's the RECORDING of the thing that's the problem
Click to expand...

I noticed there was an exception in the Kaliofoica law "if by radio". What if you were on a cellphone or a cordless phone? Technically the conversation was carried out on a "radio" in that case.
 
lancefisher said:
I noticed there was an exception in the Kaliofoica law "if by radio". What if you were on a cellphone or a cordless phone? Technically the conversation was carried out on a "radio" in that case.
Click to expand...
Actually, just put a radio transmitter in the room with you while on speakerphone, and record the other end of the radio transmission!
 
I'm don't know enough about CA law to say - but even if it did exempt you from state law, you would still have violated federal wiretapping laws by intercepting the cell phone signal... IF you were not a party to the convo. If you were, it seems to me that the Feds say that's ok. But anyone that wants to know what's legal and not needs to talk with a local knowledgeable attorney and find out REALLY what's what. :yes:
 
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