March 30, 2017

Is It Really Illegal to Make Undercover Recordings in California?

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I Am Still Not A Lawyer, and I don’t want to go too far down this rabbit hole, but I’ve gotten a fair amount of pushback to my post last night suggesting that the folks who did the undercover Planned Parenthood videos shouldn’t be prosecuted. The pushback takes two forms. First, they’re horrible people who did horrible things. Second, California law requires consent from both parties for any kind of recording, and they broke that law. They should pay for this.

As to the first, I agree that they did horrible things and endangered people. But that’s not what they’re charged with. As to the second, California law (link here) is not as clear-cut as you might think:

If a real live California attorney with specific experience in this area wants to chime in, I’m all ears. For now, though, no matter how much I loathe what they did, I don’t like the idea of prosecuting people for political activities unless their violation of the law is very serious and very clear. This is neither.

Criminal prosecution of secret recordings is rare in California, and I’d just as soon keep it that way. There’s a huge amount of prosecutorial discretion involved in this case, and that’s a recipe for political retaliation against ideas we don’t like. That’s where I get off the train.

UPDATE: Then again, we have this:

The penal code is stricter than the civil code, “but excludes a communication made in a public gathering.” I don’t know if this refers only to public meetings (town halls, protests, etc.) or to any public place, like a restaurant. Probably the former.

This is all kind of strange. Why would there be an “investigatory” exception for lawsuits but not for criminal prosecutions?

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