SECRET AUDIO AND VIDEO RECORDINGS
This page explains the law regarding secretly recording audio and video. For information about using and publishing those recordings, please see our Legal Guide to video releases & the use of Audio and Video Recordings. Keep in mind that laws regarding secretly recording someone can vary from state to state.
This guide focuses on secret recording laws and the use of drones to record in California, so if you have questions about your state’s laws, you can check out our list of law school IP and entrepreneurship clinics and our list of arts and IP volunteer lawyer organizations to find assistance in your state.
Can you secretly record audio of someone?
What is confidential communication?
What is not confidential communiation?
Are communications made in public places confidential?
What are the kinds of highly offensive circumstances that allow communications in a public place to be confidential?
Are communications made in a private home or business confidential?
Is the communication confidential when the person sees the recorder?
Are telephone calls confidential?
For non-confidential communications that involve a cell phone, do I still need to obtain consent to record communications?
How much consent do I need to secretly record?
What if I want to record someone committing a crime?
Can I share or publish my recordings with others?
Do I receive any special protections or privileges if I am secretly recording for newsgathering purposes?
Can I secretly record in a courtroom?
Can I secretly record at public meetings?
Can I secretly record video?
What if the video also contains audio?
What are the punishments for illegally recording someone?
Can I use a drone to secretly record or film?
What am I allowed to film with a drone?
Can you secretly record audio of someone?
The general rule is that you must obtain consent from all parties to record a confidential communication in California. There can be criminal and civil liability in California for recording confidential communications, including a telephone call or wire communication, without the consent of all parties. (California Penal Code §§ 631, 632). In addition, for calls that involve a cellular or cordless phone, one must obtain consent regardless of the confidentiality status of the communications (California Penal Code 632.7). A communication is not limited to just two or three people. For example, an audience member listening to a speaker is a party to that communication. What qualifies as confidential, as well as what qualifies as consent to record depends on case law in your state.
These laws can apply to recording regardless of if you are a party to that conversation. In Smith v. LoanMe, the California Supreme Court confirmed that both (a) parties to a communication, and (b) third parties who are not party to a communication, can be found liable under California law for recording confidential communications without permission. (Smith v. LoanMe, Inc., 11 Cal. 5th 183, 483 P.3d 869 (2021)).
While we will focus on criminal liability under California Penal Code §§ 631 and 632
in this guide, there also may be separate civil liability under privacy laws such as intrusion upon seclusion. In at least one case, Sanders v. Am. Broad. Companies, Inc., 20 Cal. 4th 907, 978 P.2d 67 (1999), while a court found that there was no criminal recording liability when a reporter posed as an employee of a company and secretly recorded another employee, there was still separate liability under the state’s intrusion upon seclusion law. -top-
What is confidential communication?
A communication is confidential if a person reasonably expects that the communication is not being overheard or recorded. It is not confidential if it can naturally be overheard by someone else. For example, if you are in public and reasonably expect others to hear you, then the communication is not confidential.
In Flanagan v. Flanagan, the California Supreme Court clarified that a "confidential communication" is a conversation in which a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. (Flanagan v. Flanagan, 27 Cal. 4th 766, 768 (2002)). In this case, Honorine was removed from her husband John’s will when her son Michael played recorded conversations for John of Honorine allegedly telling her manicurist she would pay someone $100,000 to kill John, and discussed injecting John with water rather than his cancer medicine. Though John and Honorine later reconciled (and she was reinstated in the will), Honorine allegedly went on to secretly record telephone conversations between her husband, John, and his son, Michael, using a voice-activated device installed on their home phone. The recordings apparently included conversations about directions, reminders to a gatekeeper that Michael was coming to visit John, and coordination about time and place of meetings. The court found these conversations to be confidential because Michael had a reasonable expectation of privacy. It’s important to note that the court embraced a broader standard for communications covered by 632, saying that courts should simply look at whether either party reasonably expected that the communications were not being overheard or recorded. The court went on to say that courts should not consider the contents of the communication or whether participants had a reasonable expectation that the content will not later be divulged to third parties (an older, now abandoned standard).
So, a communication is confidential if a person reasonably expects that the communication is not being overheard or recorded. It is not confidential if it can naturally be overheard by someone else. The content of the communication and whether participants had a reasonable expectation that the content would not be divulged later is not part of the analysis. -top-
What is not confidential communication?
Confidential communication does not include (1) conversations in public areas (except for highly offensive circumstances!), (2) situations where the person being recorded has an awareness that they are being recorded, (3) situations where the person being recorded can reasonably expect to be overheard or recorded, and (4) situations where recording is for the purpose of obtaining evidence reasonably believed to relate to crimes such as extortion, kidnapping, bribery, or felony violence against a person.
Examples of non-confidential communication might include
Public Gatherings & Events: Conversations held in public places where anyone can overhear them, like a busy street or a park. An event or situation where the participants can reasonably expect that their conversation might be overheard or recorded, such as a public rally. (see more detail about public places below)
Employment and other situations: Any other situation where an individual did not have an objectively reasonable expectation that they could be overheard or recorded. For example, in Sanders v. Am. Broad. Companies, Inc., 20 Cal. 4th 907, 978 P.2d 67 (1999), a court found that there was no criminal recording liability when a reporter posed as an employee of a company and secretly recorded conversations with another employee because these communications in a shared cubicle space were not confidential. However, the court still found the reporter liable for a civil privacy law violation under the state’s intrusion upon seclusion law.
Communications recorded for purposes of obtaining evidence related to certain crimes: In People v. Suite, the court held that a bomb threat made to a police department is not considered "confidential communication" under California Penal Code § 632. (People v. Suite, 101 Cal. App. 3d 680 (1980)). Under the statute, a communication is confidential if it is carried out in circumstances that reasonably indicate that at least one party desires it to remain private. However, the law also provides an exception, stating that nothing in Sections 631 or 632 prohibits a party from recording a confidential communication if it is for the purpose of obtaining evidence reasonably believed to relate to crimes such as extortion, kidnapping, bribery, or any felony involving violence against a person. Since a bomb threat clearly involves the potential for violence, the recording of the call was permissible, and the communication was not considered confidential under the law.
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Are communications made in public places confidential?
No, communications made in public are generally not confidential. Communications made in public include those made in public gatherings, including any legislative, judicial, or executive proceedings, or communications made in any other circumstance in which one could expect to be overheard or recorded. The circumstances determine whether the communication is confidential. For example, a conversation held in a crowded restaurant, close to other tables, and with no attempt to keep the conversation confidential is not protected. On the other hand, a conversation held in a secluded restaurant, apart from the presence of strangers, and with efforts to keep the conversation confidential is protected. Sometimes, a communication made in public can be considered confidential if it was obtained by another in a way that is highly offensive.
An example of non-confidential public place communication
In Malinowski v. Martin, the California Court of Appeal held that a father’s communications with his children during supervised visitation exchanges were not "confidential" under Penal Code § 632 for two primary reasons: first, the communications occurred during a court-ordered supervised visit, where the supervisor's role included monitoring and documenting interactions for court review, negating any reasonable expectation of privacy; and second, the exchanges took place in a public parking lot during daylight, surrounded by businesses and public buildings, where conversations could reasonably be expected to be overheard by bystanders, further eliminating any expectation of confidentiality.
In short, when a conversation occurs in a public setting, such as a park, a restaurant, or any open space, the expectation of privacy is generally diminished, making such communications unlikely to be considered confidential. -top-
What are the kinds of highly offensive circumstances that allow communications in a public place to be confidental?
Occasionally an otherwise public situation can be considered confidential, where secretive recording would still be considered highly offensive and intrusive. For example, recording or photographing someone in an emergency medical situation during an accident in a public place.
In Shulman v. Group W Productions, Inc., the California Supreme Court held that conversations between Ruth Shulman and medical personnel during an emergency helicopter rescue could be considered "confidential communications" under Penal Code § 632, as Shulman had a reasonable expectation of privacy despite the public nature of the accident scene and despite the recording being for newsgathering purposes. (Shulman v. Group W Productions, Inc., 18 Cal. 4th 200 (1998)). The court found that the recording of sensitive medical communications using hidden microphones and cameras without Shulman’s consent could be highly offensive to a reasonable person. The ruling highlighted that the context, content, and method of recording—particularly in a quasi-private medical setting—can transform a public setting into a space where privacy is reasonably expected and where secretive recording may be deemed intrusive and offensive. -top-
Are communications made in a private home or business confidential?
Yes. There is a certain level of privacy inherent in a home or business. Inviting someone into a private home or business does not waive confidentiality. However, the circumstances may determine whether the communication is confidential. The main question is whether the person being recorded reasonably expects confidentiality. -top-
Is the communication confidential when the person sees the recorder?
If the person sees the recorder and is aware that they are being recorded, they are presumed to have given consent. If the person sees the recorder but does not know what it is, this is not presumed consent. The key question is not whether the person sees the recorder, but whether they know they are being recorded. -top-
Are telephone calls confidential?
Telephone calls are confidential if the person reasonably expects privacy. For example, a call made from your house would be confidential. However, a cell phone conversation conducted while walking down a busy sidewalk is not confidential. -top-
Yes, there are special rules for calls that involve a cellular or cordless phone, and you (whether a party to the call or not) must obtain consent from all parties to record a call involving a cellular or cordless phone, regardless of the confidentiality status of the communications (California Penal Code 632.7). Smith v. LoanMe, Inc., No. S260391 (Cal. Apr. 1, 2021). -top-
How much consent do I need to secretly record?
States differ on the amount of consent required. There are two types: one party and two-party consent. CA requires "two party" consent. This means that you must have consent from the person you are recording. This restricts the ability to secretly record in CA. Many states, however, only require "one party" consent. This means that you can secretly record someone without telling them, so long as you are a party to the conversation. However, you do not need any consent if the communication is not confidential. You can check out this chart to see how much consent your state requires.
California is a two-party consent state. While it is good practice to get clear, explicit, recorded consent to record, implied consent may be enough to satisfy the law. This means that even if there is not clear consent to being recorded, facts indicating awareness of and consent to recording could be deemed sufficient consent.
Once a party is notified a conversation is being recorded, continuing that conversation can be considered implied consent.
The California Supreme Court has acknowledged that consent to recording can be implied after adequate notice. (Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 137 P.3d 914 (2006)). So, if a party adequately advises all other parties at the outset of a telephone call of its intent to record, continued participation in the call implies consent to the recording (Rojas v. HSBC Card Services Inc., 93 Cal.App.5th 860 (2023)).
Can a beep tone on a recording serve as consent to record in a two party state?
Though it is not settled law, this is a great question to ask when thinking about what qualifies as consent. In Smith v. LoanMe in California, an individual claimed that LoanMe agents had illegally recorded calls without consent. Though the appellate courts did not issue a final ruling on this point, LoanMe argued that the beep tone served as notice of recording (and sufficient consent because the caller remained on the call after the beep tone), even when the agents did not verbally advise callers that they were being recorded. The trial court listened to the calls and agreed with LoanMe that the recording provided adequate notice of recording, but since the appellate courts did not rule on this point, it will likely be fact dependent.
Out of state business or individuals can be held liable for recording California individuals
While the individual facts of a case and the law of civil procedure govern whether California courts can hear a case, or California law will apply, there have been cases where California courts enforce California recording laws against out of state parties. So California consent requirements can still apply even if only one party is in California. For example, in a case where a Georgia (a single party consent state) company had offices in California, and did extensive business in California, California courts were able to hear the case in California under California law. The California Supreme Court found that California had an interest in protecting privacy of telephone conversations of California residents while they were in California.
How to get consent in "two-party" consent states
The takeaway is that in “two-party” consent states where both parties’ consent is required, parties should be careful to obtain clear consent to record, and also evidence of that consent. You can learn more about obtaining proper consent in our Legal Guide to video releases & the use of Audio and Video Recordings. -top-
What if I want to record someone committing a crime?
California provides an exception: you can record someone without their consent, if it will be used to prove kidnapping, extortion, bribery, or a violent felony. Most states will not allow you to record someone in furtherance of your own crime or tort. -top-
Can I share or publish my recordings with others?
Under California law, it is illegal to disclose any confidential information unlawfully obtained. Even if you do not disclose the recordings, you can still be liable for unlawfully obtaining the communications. You can disclose recordings you lawfully obtain. Please see our Legal Guide to video releases & the use of Audio and Video Recordings for what restrictions you have in publishing your recordigns. -top-
Do I receive any special protections or privileges if I am secretly recording for newsgathering purposes?
No, newsgathering does not provide any immunities from generally applicable laws that prohibit secret recording. Newsgathering recordings do receive special considerations when a person brings an invasion of privacy claim, and the recordings were lawfully obtained. Courts have generally given greater weight to the public interest over privacy rights, which means that there are certain topics and matters that are important for the public to know about. In other words, it is in the interest of the public to know about certain facts, events and other happenings, and that interest can outweigh an individual’s right to privacy. Newsgathering privileges do not apply to secretly recording communications; however, they do apply to the use of those recordings. As an example, in the Schulman case above, where patient communications with rescue workers were secretly recorded (and later broadcast), the fact that the recording was for news purposes did not override the individual’s right to privacy in that highly offensive situation.
The takeaway for journalists is that while you likely have a right to be present at and record audiovisual material at public, newsworthy locations, secretly recording under circumstances that could be considered highly offensive can still lead to liability under section 632. -top-
Can I secretly record in a courtroom?
In California, recording in the courtroom is generally prohibited. Under California Rule of Court 1.150, if the media wishes to photograph, record, or broadcast court proceedings, they must submit a request using the court's official form at least five court days before the proceeding. For example, “Media to Photograph, Record, or Broadcast” (form MC-500) must be filed if the media wishes to electronically capture court proceedings. The judge has discretion to permit or deny the request based on factors such as maintaining court decorum, ensuring fair trial rights, protecting witnesses and jurors, and safeguarding privacy rights. However, the judge may permit inconspicuous personal recording devices to be used by persons in a courtroom to make sound recordings as personal notes of the proceedings. Unauthorized use of electronic devices to record, photograph, or broadcast in the courtroom may result in sanctions, including contempt of court.
More information on media use of Cameras in The Courtroom. -top-
Can I record at public meetings, secretly or otherwise?
If a public meeting is required by law to be open to the public, then you can generally record that meeting. California Penal Code 632 explicitly excludes from the definition of confidential communication "a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public." In CA, audio or video recordings are generally allowed, provided there is no disruption or interference with the meeting. Cal. Gov't Code § 11124.1(a); Cal Gov't Code §§ 54953.5. For example, setting up large video equipment that obstructs the audience's view or using bright lights that interfere with the meeting could justify the public body in prohibiting your recording.
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Can I secretly record video?
Video has slightly less restrictions and limitations compared to audio recordings. You can legally record video without consent, unless it violates the privacy rights of others. Courts have banned secret video recordings in locations such as bathrooms, locker rooms, changing rooms, bed rooms, and other places where people expect a reasonable expectation of privacy. Cal. Penal Code § 647(j)(3). This is sometimes known as the “Peeping Tom” law. Courts in some circumstances have allowed secret recordings of babysitters, elder care employees, and other instances without consent.
California also has a “anti-paparazzi” law that prohibits trespass with the intent to capture photographic images or sound recordings of people in “private, personal, or familial activity.” Cal. Civil Code § 1708.8
California’s vehicle code also includes penalties for individuals who interfere with other drivers, follow a vehicle too closely, or otherwise drive recklessly with “intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose.” Cal. Veh. Code § 40008. -top-
What if the video also contains audio?
All audio tracks contained in a video recording are subject to the "Audio Recordings" rules discussed above. Therefore, a video recording of someone might not require their consent, but would for the audio of them speaking in that same recording. -top-
What are the punishments for illegally recording someone?
Criminal
In CA, the criminal punishment for wiretapping and for secretly recording confidential communications without consent is $2,500, a maximum of one year in prison, or both. For a repeat offense, the punishment is $10,000, a maximum of one year in prison, or both.
Non-parties who disclose the contents of phone conversations they overhear or record, can either be fined up to $5000 or face a maximum of one year in prison, or both. Cal. Penal Code § 637.
Violating the state’s hidden camera law is a misdemeanor punishable by a fine up to $1,000 and maximum of six months in jail. Cal. Penal Code § 19. For repeat offenses, there is a maximum $2,000 fine or maximum of one year in jail or both. Cal. Penal Code § 647(l).
The state’s vehicle code provides for penalties of up to six months in jail and fines of up to $2,500. Cal. Veh. Code § 40008(a).
Civil
While criminal actions must be brought by local law enforcement officials such as district attorneys’ offices, anyone injured by an illegally recorded or disclosed in-person or telephone conversation can recover civil damages of $5,000 or three times the actual damages, whichever is greater. Cal. Penal Code § 637.2. A court may also grant an order (known as an “injunction” to prevent the use of illegally obtained information. Cal. Penal Code § 637.2(b).
The anti-paparazzi law permits fines of between $5,000 and $50,000, three times the amount of actual or special damages, and punitive damages if an assault or trespass was committed to capture a visual image or sound recording. Cal. Civil Code § 1708.8(d).
Overview of Drone Regulations
Can I use a drone to secretly record/film?
The laws that we’ve discussed above apply to secret recordings of any kind, so using a drone to secretly record someone in a private setting can be illegal under multiple California laws. As we’ve discussed, California has strong privacy protections that prohibit eavesdropping, stalking, and using technology—such as drones—to invade someone's personal space.
Under California Civil Code § 1708.8(a), also known as the California Anti-Paparazzi Law, a person is liable for physical invasion of privacy if they enter into the land or “airspace above the land” of someone’s property without permission in order to capture images, audio, or other recordings of the individual engaging in activities where the individual has a reasonable expectation of privacy. This law applies when the invasion would be considered offensive to a reasonable person—meaning that if most people would find the drone surveillance intrusive, it is likely illegal. This law was designed to prevent intrusive surveillance, particularly of celebrities and public figures, but it applies to all individuals in private settings. For example, it is unlawful to use any device—including drones—to capture visual images or sound recordings of someone engaging in personal activities in their own home.
As discussed, California is a two-party consent state, and you cannot secretly record a conversation where people expect privacy. Penal Code § 632 makes it illegal to record private conversations without the consent of all parties involved. If a drone is equipped with a microphone and captures private discussions—whether at home, in an office, or even in a secluded part of a park—it could violate this law.
Repeatedly flying a drone over someone’s property or following them with a drone may be considered stalking under Penal Code § 646.9. If a person uses a drone to track someone’s movements, causing them to feel harassed, threatened, or fearful, they could face criminal charges. For example, if a drone continuously follows a person as they walk to and from work, hovers outside their home, or repeatedly records them in public spaces with an intent to intimidate, this could be classified as stalking.
As to secret video recording via drone, secretly filming or photographing someone in a private setting without their consent—such as inside their home or through a window—is illegal under California Penal Code § 647(j)(3), the “Peeping Tom” law we discussed earlier. This law prohibits using any photographic devices to secretly record someone in a private space where they have a reasonable expectation of privacy, such as a bedroom, bathroom, dressing room, or other similar location. So any use of a drone for these prohibited purposes would be illegal.
What am I allowed to film with a drone?
California law allows drone operators to record in public spaces and other areas where individuals do not have a reasonable expectation of privacy. However, drone filming must comply with state privacy laws (see above), federal FAA regulations, and local ordinances that govern airspace and land use.
You may generally record with a drone in the following circumstances:
- Public Places: Filming in parks, beaches, streets, and other public spaces is generally allowed because individuals in these areas do not have a reasonable expectation of privacy.
- However, you must also double check the California Local Ordinances: Some cities, such as Los Angeles and San Francisco, have additional restrictions on drone operations, including prohibitions on flights over certain parks, wildlife areas, and critical infrastructure.
- Your Own Property: You can record on property you own or lease, as long as you do not violate local drone flight restrictions.
- With Permission on Private Property: If you have the explicit consent of a property owner, you may legally fly and record there.
- News and Commercial Use: Journalists and businesses may use drones for news coverage, real estate photography, construction monitoring, filmmaking, and other commercial purposes, provided they comply with Federal Aviation Administration (FAA) regulations (14 C.F.R. Part 107) and privacy laws.
- Example: A real estate agent using a drone to capture footage of a commercial building for a listing is acting lawfully.
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