Recording a person without their knowledge
Q: We wish to record a speaker and would rather not alert the him that he is being videotaped and/or audiotaped. He is more likely to make more derogatory comments if he is unaware. In your opinion, are we breaking any laws or causing problems for using the audio and/or videotapes to prove our case to the City Attorneys involved or in court later if we do not request permission and go ahead to audio/videotape furtively?
A: The California Supreme Court has held that in a place “to which the general public does not have unfettered access,” the people there “may enjoy a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped …, even though those conversations may not have been completely private from the participants” in attendance. Sanders v. ABC, 20 Cal. 4th 907, 911, 915 (1999) (“a person may reasonably expect privacy against the electronic recording of a communication even though he or she had no reasonable expectation as to confidentiality of the communication’s contents”).
It is unclear whether the fact the non-profit charges to attend means it does not allow unfettered access to the general public. Similarly, “[w]hether a reasonable expectation of privacy is violated by such recording depends on the exact nature of the conduct and all the surrounding circumstances,” id., and it is therefore difficult to predict how the courts would view the taping you propose.
If using hidden microphones and/or camera to tape without consent is unlawful under the circumstances, you would be unable to use the tape as evidence and you could be charged with a crime and sued. Cal. Penal Code § 632. The investigative firm may be concerned because it could also be sued, or charged with a crime, if the taping was unlawful. See Ribas v. Clark, 38 Cal. 3d 355, 361-62 (1985) (third party who performs wiretap at the request of one party to a conversation, but without consent of the other, may be liable under related provisions of Penal Code § 631).