Am I Allowed to Record Phone Calls With My Ex in Orange County?

The short answer is that if you do not have explicit permission to record a phone call with someone in California, then it’s illegal to do so, and you could be charged with eavesdropping. That can be charged as either a misdemeanor or a felony, with the choice left to the prosecutor. If convicted, the person who made the illegal recording could face these consequences:

Misdemeanor conviction. This could lead to up to a one-year stay at the county jail and/or fines up to $2,500.

Felony conviction. This could lead to up to a three-year stay in the county jail or state prison and/or fines up to $2,500.

The consequences for eavesdropping, whether felony or misdemeanor, are severe and shouldn’t be taken lightly.

It’s important to note that eavesdropping charges do not apply to law enforcement working on cases. They can legally listen to private conversations without the consent of the people talking, and any evidence they collect from this is admissible in court.

However, a law in California allows people to take photos, audio recordings, and videos of police officers who are in public or any place the person recording has the right to be. That same law protects people doing the recording from being arrested or even being considered to have reasonable suspicion for police to detain them. As long as the person recording has the right to be where they are and they’re not interfering with the police officer’s work while recording, they can’t be arrested for resisting arrest or obstructing an officer.

What Constitutes Eavesdropping in California?

The California eavesdropping law has several specific conditions.

If the recording was done intentionally and not by accident, it’s likely eavesdropping. Note that it can be difficult to prove something was recorded accidentally; it’s the type of argument that can lead to “he said/she said” disputes.
The recording is done without the explicit permission of everyone on the call.
If the conversation is recorded or heard by someone via an electronic amplifying device, that could be considered eavesdropping. That means it’s not just recorded on the phone but recorded in a private room or putting a hidden amplifying device in a room for someone to listen to in another room.
The conversation is meant to be confidential. However, don’t assume that someone can say they didn’t know the conversation was confidential as part of their defense.

Is There Ever a Time It’s OK to Record Someone Without Their Permission?

The California eavesdropping law does make an exception in that it allows someone to record a conversation made in a public gathering. However, this exception does not apply to secretly recording law enforcement, and it also doesn’t apply if private citizens are being recorded by someone trying to gather evidence of a crime. In both those cases, the person who wants to record needs to get permission. If permission is denied, recording could lead to the same consequences listed above.

Someone who wants to secretly record private citizens to gather evidence of a crime has restrictions too. To earn an exception to the eavesdropping law, the person gathering evidence must:
Be one of the people involved in the conversation. In other words, they can’t secretly record others who are talking and aren’t aware of their presence.
The person doing the recording is trying to gather evidence that they reasonably believe the other person(s) has about specific crimes, which are extortion, kidnapping, bribery, or any felony involving violence against another person, such as assault, rape, or murder.

Could My Ex Sue Me if They Find Out I Secretly Recorded Them?

Yes. They can sue you in civil court, which is different than a crime. You could then face problems in both civil and criminal court, because one doesn’t preclude the other. The ex would need to prove that the recordings caused them damage. Sometimes people in divorce or custody cases want to secretly record their ex to use it against them in divorce court or in child custody hearings. But that can backfire spectacularly.

For example, say one ex-spouse secretly records the other complaining about having too much time with a child. The recording spouse tries to use that in court to gain full custody. But once the recording and how the recording was done comes out, not only is the recorder subject to the misdemeanor or felony punishment, but the recordings will not be allowed in court.

Is Eavesdropping the Same Thing as Wiretapping?

California has a separate law to address illegal wiretapping, which, while similar to eavesdropping, is not exactly the same. Eavesdropping means someone is actively listening to someone else’s private conversation or recording that live conversation without permission. Wiretapping is the act of using a machine to get into someone else’s phone listen and/or record without that person’s knowledge or permission. In eavesdropping, no one’s phone is being tapped into–the record is using their phone as the means to record the conversation.

How Can I Legally Record a Phone Call With My Ex?

Before you start recording, ask your ex if they agree to be recorded. If they do, start the recording, then announce that the recording has started and either ask your ex again or note that you asked them before turning on the recorder. Then you have audio proof that you did in fact ask for permission and was not denied, meaning you won’t end up in a “he said, she said” legal situation.