Re: For Your Information

["practic![e-mail]" <[e-mail]>]

All,

Dave Borman's FYI note of today contained the statement that someone
apparently has been advised that recording phone conversations without
consent is not subject to statute.

As I recall, in an earlier mailing to the IETF list, someone mentioned that
he works in Emeryville. As there is a municipality by that name in Alameda
County California, the following is offered for clarity. This note is in
three parts, the first is sec 632, the second is cross references, the
third is sec 637.2, of West's California Penal Code, 1992 Compact Edition.

When the relevent Federal statues (18 U.S.A. sec 2510 et seq.) are faxed
to me by my friendly local law library, I'll add these so there won't be
any unnecessary juridictional squabbles.

Passages marked by "..." are not included for brevity, and to this reader,
not relevent.

California Penal Code section 632 "Eavesdropping on or recording confidential
communications"

(a) Every person who, intentionally and without the consent of all parties
to a confidential communication, by means of ... or recording device, ...
or records the confidential communication, whether the communication is
.. or by means of a telegraph, telephone ..., shall be punished by a fine
not exceeding $2,500, or imprisonment in the county jail not exceeding one
year, or in the state prison, or by both that fine and imprisionment. ...

(b) The term "person" includes an individual ...

(c) The term "confidential communication" includes any communication
carried on in circumstances as may reasonably indicate that any party to the
communication desires it to be confined to the parties thereto, ...

(d) Except as proof in an action or prosecution for violation of this
section, no evidence obtained as a result of evesdropping upon or recording
a confidential communication in violation of this section shall be admissible
in any judicial, administrative, legislative, or other proceeding.

(e) This section does not apply (1) to any public utility engaged in the
business of providing communications services and facilities ... (2) to
the use of any instrument ... of such public utility, or (3) to any
telephonic communication system used for communication exclusively within
a state, county, city and county, or city correctional facilty.

(f) This section does not apply to the use of hearing aids and similar
devices ...

Cross references (those relevent):
Civil action by person injured by violation of this chapter,
	see Penal Code section 637.2.
Federal wiretap and eavesdropping provisions,
	see 18 U.S.A. sec 2510 et seq.
Presumption that certain communications are confidential,
	see Evidence Code sec 917.

Cross reference where this happens most:
Divorce, separation and annulment cases, exclusion of evidence collected
by eavesdropping,
	see Civil Code sec 4361.

California Penal Code section 637.2 "Civil action by person injured;
injunction"

(a) Any person who has been injured by a violation of this chapter may
bring an action against the person who committed the violation for the
greater of the following amounts:
	(1) $3,000
	(2) Three times the amount of actual damages, if any, sustained
	    by the plaintiff.

(b) Any person may, in accordance with the provisions of Chapter 3
(commencing with Section 525) of Title 7 of Part 2 of the Code of Civil
Procedure, bring an action to enjoin and restrain any violation of this
chapter, and may in the same action seek damages as provided by subdivision
(a).

(c) It is not a necessary prerequisite to an action pursuant to this section
that the plaintiff has suffered, or be threatened with, actual damages.

I hope that this clarifies the legality of the act described, the morality
of it is obvious, and I hope that an appology is offered, the unlawful
recording surrendered to the injured party and a stipulation, accompanied
perhaps by a bond is offered that this will not reoccur. The alternatives
are fairly certain.

This ain't how I want to do business in the future!
Eric