Can police use hidden cameras to videotape the public without consent?

Answer

You pose an interesting question.

A provision of California’s Penal Code imposes penalties for “intentionally and without the consent of all parties to a confidential communication … eavesdropping] upon or record[ing] the confidential communication [by means of any electronic amplifying or recording device], whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.”Penal Code § 632

(a) (full text below in italics).The term “person” in the statute is defined to include “an individual acting or purporting to act for or on behalf of any government or subdivision thereof,” which would seem to include law enforcement personnel.Penal Code § 632 (b).

Note, however, that there are a number of carve-outs related to law enforcement, including one specifying that § 632 does not prohibit police officers from “overhearing or recording any communication that they could lawfully overhear or record prior to” the enactment of § 632 in 1967.Penal Code § 633.

Another carve-out provides that “[n]othing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m.

Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders any evidence so obtained inadmissible in a prosecution for extortion, kidnapping, bribery, any felony involving violence against the person, a violation of Section 653m, or any crime in connection therewith.”Penal Code § 633.5.

A more detailed analysis of the circumstances under with a police officer would be permitted to secretly record communications is, unfortunately, beyond the scope of this service, which is focused on First Amendment and government access issues.

It is probably worth noting, however, that law enforcement personnel might have room to debate whether a conversation between a police officer and a member of the public that took place in the course of the officer carrying out his or her official duties could reasonably be considered “confidential,” even if it took place in the citizen’s home.

That determination might be highly dependent on the particular circumstances surrounding the event.See People v. Maury, 30 Cal. 4th 342, 386 (2003) (“The term confidential communication as defined in Penal Code Section 632, [subdivision] (c) includes only those communications carried on in circumstances that would reasonably indicate that any party to the communication desired it to be confined to the parties thereto.”).

(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
(b) The term “person” includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.
(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, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping 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, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.
(f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.
Cal Pen Code § 632

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.