October 28th, 2013
SFMS is counsel in two recent decisions which have broadly interpreted California's Wiretapping Statute, Cal. Penal Code. Sec. 632.7. Section 632.7 provides that "every person who, without the consent of all parties to a communication, intercepts or receives and intentionally records or assists in the interception or reception and intentional recordation of, a communication . . . shall be punished by a fine." Cal. Penal Code § 632.7(a). In Swanlund v. Math TutorDVD.com, Case No. 13-01021-JGB (SPx)(C.D. Cal., filed June 7, 2013), plaintiff called defendant from a cellular telephone and the conversation was recorded by defendant without plaintiff's consent. On defendant's motion to dismiss, the court considered whether Section 632.7 applies only in cases where unknown third parties intercept and record cell phone conversation, or whether it may also apply to prevent recording by known participants in cellular telephone calls. Math TutorDVD, at p. 5-6. Defendant argued that the California legislature intended the statute to apply only to unknown third parties, id. at p. 5, but the Court, relying on Brown v. Defender Security Co., 2012 WL 5308964, at *5 (C.D. Cal. Oct. 22, 2012), agreed with the Plaintiff that Section 632.7 "prevents a party to a cell phone conversation from recording it without the consent of all parties to the conversation." The court noted that the use of the word "or" between "intercepts" and "receives" shows that the statute may apply either to communications that are intercepted or to calls where the known participant secretly records the call. Math TutorDVD, at p. 6.
In a similar ruling, in Brown v. U.S. Money Reserve, Inc., Case No. 13-5139 ABC (Ex)(C.D. Cal. Oct. 8, 2013), the court likewise found that Section 632.7 applies to parties to the communication. Ruling on a motion to dismiss the Complaint, the court rejected the defendant's interpretation that the statute only applied to eavesdroppers, or unknown third parties. U.S. Money Reserve, at p. 3. The court also rejected defendant's argument that Section 632.7 applies only to "confidential" communications. Id. at p. 4, finding instead that Section 632.7 prevents the intentional recording of all communications made by wireless telephones, not just confidential communications. Id.
It is anticipated that decisions like Math TutorDVD and U.S. Money Reserve will lead to greater protection of consumers' privacy and assist in preventing the undisclosed recording of telephone conversations by a party to the call.