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Ely, Counselor at Law
Category: Criminal Law
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in California, can you legally leave a running recorder in

Customer Question

in California, can you legally leave a running recorder in your own home?
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Ely replied 3 years ago.
Hello friend. My name is Ely, and welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

Technically, this may be against the law depending on the circumstances.

California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. Cal. Penal Code § 632.

This applies to "confidential communications," or, conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002).

That is as specific as it gets; from then on, it is on a case by case basis.

Now I understand that this is someone's home and the one setting the recorder may be the owner - yes. But then the above still applies.

The spouse/friend/live-in lover of the owner may have a "reasonable expectation of privacy" even if in your home, if they are having a conversation with you or someone else. Only if you TELL everyone that there is a recorder and they still go on talking, would this not be the truth.

There is no fine line between reasonable expectation of privacy and no expectation. It is on a case by case basis. So it would be up to the local prosecutor to think whether or not this qualifies even if the recorder was in one's own home. It is unlikely the prosecutor would bring charges, though. It is even more unlikely that if they do, a jury would unanimously convict.

However, it is still risky and may result in liability, so it is not recommended.

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