Is a recorded message on a voicemail considered private?

Answer

It is doubtful that the recording of a message from someone who voluntarily leaves a message on a voicemail will violate a wiretapping law because the laws generally prohibit only surreptitious listening or recording. Those leaving voicemail messages fully expect that such messages will be recorded.

For example, California’s Eavesdropping Law, Cal. Penal Code section 632 makes it a crime to listen to or record by electronic means any “confidential communication” unless one one has the consent of all parties the the “confidential communication.” The law defines “confidential communication” to mean:
“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. ”

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC 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.