Re: For Your Information
"practic!brunner@uunet.uu.net" <brunner@practic.practic.com> Thu, 17 September 1992 20:18 UTC
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To: dab@berserkly.cray.com
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Subject: Re: For Your Information
Date: Thu, 17 Sep 1992 13:06:36 -0700
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From: "practic!brunner@uunet.uu.net" <brunner@practic.practic.com>
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
- For Your Information David A. Borman
- Re: For Your Information Dan Lynch
- Re: For Your Information practic!brunner@uunet.uu.net
- Re: For Your Information Daniel J. Bernstein
- Re: For Your Information Carl Malamud
- Re: For Your Information practic!brunner@uunet.uu.net
- Re: For Your Information Daniel J. Bernstein
- Re: For Your Information Steven J. Richardson