The California Invasion of Privacy Act

Would most consumers know if a person, telemarketer, debt collector, creditor, or any type of business recorded a phone conversation between the consumer and the other person and/or business, without the consumer’s permission?  Likely not, without having discovered that during or after the call, or having been told that later in the call or after the call.

A consumer may have heard the automated or oral warning from a company that, “This call may be monitored or recorded for quality assurance purposes.”  If a consumer has heard this after the consumer had already started speaking with a company, or if the consumer did not hear it but found out later that their conversation was recorded without their consent, the consumer may be entitled to compensation.

Under the California Invasion of Privacy Act, California Penal Code Section 630, et seq. (“CIPA”), such practices are illegal, and the consumer could be entitled to thousands of dollars for each telephone call that has been unlawfully recorded, as unlawful call recording invades a person’s right to privacy.

Not all companies in and outside of California comply with the CIPA’s provisions.  Some companies audio-record a person’s telephone conversations with them without the person’s knowledge or consent.  Some other companies do not inform a person that a call is recorded and that everything that the person has said has been recorded until towards the end of a lengthy conversation.

Pursuant to the California Invasion of Privacy Act, consent from all parties is required before recording a phone call.  Some other states, like Massachusetts, have similar provisions to that of the CIPA in their state’s own respective call recording law(s).  Not all states have these requirements, however, so the law(s) in regard to the recording of phone calls are different depending on the state.

Even if the consumer does not have actual damages, for example the loss of money, as a result of a one-sided phone recording where someone is recording the consumer without their express consent, the consumer could still have statutory damages that the consumer is entitled to pursuant to the CIPA.

A consumer is entitled to file a lawsuit against any business that is violating their rights under the CIPA, and to seek damages from the business pursuant to the CIPA.   The consumer can receive compensation via statutory damages of up to $5,000.00 per illegally recorded phone call, and up to three times their actual damages (out of pocket damages, and so forth). 

While the consumer has the right to certain protections in their telephone communications – whether the consumer is talking on a cell phone or on a landline – the standards are different depending on the type of telephone that is being used by the consumer.

If a landline is being used by the individual, there has to then be a reasonable expectation of privacy in the communication before there can be a violation of the CIPA for the call having been recorded without the individual’s knowledge or consent.

To determine if there was a required ‘confidential communication’ in the phone call, a court will often try to examine what the content was of the information that was disclosed, and what the surrounding circumstances were.

In regard to situations where an individual person is using a cell phone, the CIPA imposes strict liability.  So, the content of the communication does not have to be of a private nature.

There is no requirement that there had to have been a ‘confidential communication’ in the phone call, such as when an individual is talking on a landline.  If the business records the audio of a cell phone conversation without the consumer’s knowledge or consent, it is a violation of the law, even if the business did not know that the consumer was talking on their cell phone.

As mentioned, the person harmed is entitled pursuant to the CIPA to statutory damages of $5,000.00 for each and every unlawfully recorded call; so, per call.  The CIPA only applies to people who are within the state of California at the time of the call(s).

Businesses outside of California who are audio-recording people in California must still comply with the requirements of the CIPA when making the call(s) to, or receiving call(s) from, a person who is within California at the time that the call(s) occurs.  A business’s ignorance of the CIPA would not be an excuse to violating the law.

The statute of limitations period for a person to sue a company that has violated that person’s rights under the CIPA is one year.  This means that a consumer has one year from when that company violated their rights to sue them.  There is an argument for an equitable tolling of the statute of limitations period if the consumer was not aware that their call had been secretly audio-recorded without their permission and express consent.

It can be hard to determine whether a company is recording a consumer illegally, if they will not disclose that fact to the consumer.  A strategy that a person can take to determine this is to ask the company at the beginning of the call whether or not the call is or will be recorded. Some companies will turn off call recording on a respective call if they are asked to do so.  Other companies might refuse to turn off call recording on a respective call if they are asked to do so.

Some companies will try to make the argument that if a person continues to remain on a call, even after the company discloses that the call is being recorded later on in the call, then that would amount to implied consent from the person for the call to be recorded.

Some consumers will argue that a refusal by a company to turn off call recording during a call with a person is something that could make the company liable for damages under the CIPA.  People are always free to leave the conversation if the company will not stop recording the call, and to then sue the company for not telling the person that the call would be recorded before they started recording the call.

Some companies will hide language in written contracts that states that if the contract is signed then the company obtains consent from the consumer for the company to record all future calls between the company and the consumer.

Consumers should watch out for such language in contracts.  However, there is also the argument to be made that if that type of language is hidden within a standard form contract, or in the terms and conditions of a contract or website, then such a provision is unconscionable, which would make it unenforceable.

If a consumer was within California when the consumer spoke on the phone with a company or another person, and if the consumer believes that the consumer’s call was recorded illegally, without the consumer’s express consent, then as mentioned, the consumer can sue the company for statutory and actual damages.  A consumer can give the Consumer Financial Protection Bureau, their respective state’s Attorney General’s Office, and/or a law firm a call if the consumer needs assistance.  No one should be illegally recorded without their consent.