California Supreme Court Rules Phone Calls Cannot be Recorded Without Consent of All Parties

April 1, 2021

The California Supreme Court held today that all parties must consent to the recording of a cellular phone call under the state’s Invasion of Privacy Act. In Smith v. LoanMe, an individual alleged that a loan servicer had recorded their call without obtaining consent from the called party. The lower court found that the law’s ban on recording calls without consent only applied to eavesdroppers and did not apply when one of the parties to the communication recorded the call. The lower court ruling went against decades of cases and guidance that held California was a “two party consent” state. The California Supreme Court reversed and held that the law prohibited both eavesdroppers and parties to a call from recording without consent. The Court recognized that the California legislature intended to create an all-party consent regime and that recording a call without consent of all parties “can implicate significant privacy concerns, regardless of whether a party or someone else is performing the recording.” EPIC filed an amicus brief arguing that recording a call without consent of all parties “poses unique threats to privacy.” EPIC routinely files amicus briefs in cases implicating consumer privacy.

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