Recently, Los Angeles City Councilman Jose Huizar was placed on leave as LAPD detectives investigate the possibility that illegal recordings were made in the Councilman’s office. Investigators are not naming the staffer, nor releasing what may have been illegally recorded, though no arrests have been made as of yet.
The illegal recording allegations come amid other scandals that Councilman Huizar is currently dealing with. His offices and home were raided by the FBI last November, and several boxes were removed, with one of them being clearly marked “fundraising.” Additionally, real estate developers who do fundraising in the councilman’s district have received subpoenas to turn over any information on fundraising and communications with the councilman and his employees.
While no arrests have been made regarding the FBI investigation of the councilman, the aid may be in trouble if it is found that they made illegal recordings of the councilman’s dealings. Under California Penal Code 632 PC, it’s illegal to record someone by any electronic, amplifying or recording device, without the consent of all parties to a confidential communication.
In order to be charged with violating PC 632, a few criteria need to be met. The first is that the recording must be intentional, as opposed to accidental. Second, all parties to the communication must give consent to the recording. Even if one party consents and the other doesn’t, it’s still eavesdropping. Third, the conversation must be confidential. For a conversation to be considered confidential, it has to take place under circumstances that reasonably indicate that at least one party intends for it not to be overheard. Finally, the eavesdropping must include an electronic amplifying or recording device. It doesn’t count as eavesdropping if someone just overhears something they weren’t supposed to.
It’s also possible to be charged with eavesdropping if a person intercepts a phone call between two cell phones, two cordless phones, a cell phone or cordless phone and a landline, or a cell phone and a cordless phone, with criminal intent and without the consent of both parties involved.
Interestingly, but perhaps not surprisingly, recordings that were obtained via illegal means, such as eavesdropping, are not admissible in court. So, whatever it was the aid in Councilman Huizar’s office may or may not have been trying to record would not be useful anyhow.
Eavesdropping is a “wobbler” in California Law, which can be charged as either a misdemeanor or a felony. Misdemeanor penalties include up to one year in county jail, a fine of up to $2,500, or both. If charged as a felony, the possible penalties include 16 months to three years in a California state prison, a fine of up to $2,500 or both. If a person has a prior conviction for eavesdropping on their record, and they are convicted again, the fine is increased to $10,000.