California Penal Code § 631 – Wiretapping

  1. Introduction

    A person who intercepts a communication in transit over a telephone or other communication line without the consent of all parties to the communication may be charged with wiretapping. For example, an individual who installs spyware on a computer to capture communications without the consent of all parties to the communication may be charged with wiretapping. Likewise, a person who installs hidden cameras to view and transmit sexual activity over an individual’s home network without the consent of the parties engaged in the activity may be charged with wiretapping. Disagreement exists as to whether the recording of sexual activity without accompanying conversation constitutes a “communication” under the statute. While closely related to (and often charged along with) eavesdropping, wiretapping is the act of intercepting a communication in transit rather than simply monitoring communications without consent.

  2. Text of the Statute(s)

    “(a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment in the county jail or pursuant to subdivision (h) of Section 1170. If the person has previously been convicted of a violation of this section or Section 632, 632.5, 632.6, 632.7, or 636, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.

    (b) This section shall 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 herein 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.

    (c) Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

    (d) This section shall become operative on January 1, 1994.”1

  3. Cases

    1. People v. Moreno, No. C072902, 2014 WL 6809702 (Cal. Ct. App. Dec. 3, 2014).

      • Procedural Posture: Defendant was required to register as a sex offender and convicted of nineteen felonies and two misdemeanors, including burglary, wiretapping, unauthorized computer access, and stalking. On appeal, defendant contends there was insufficient evidence to support two counts of wiretapping and that he was entitled to a jury trial because the residency requirements of sex offender registration impose additional punishments.

      • Law: Wiretapping (Cal. Penal Code § 631(a)); stalking (Cal. Penal Code § 646.9); burglary (Cal. Penal Code § 459*); unauthorized computer access (Cal. Penal Code § 502(c)(4))

      • Facts: Defendant and victim dated from April 2007 until January 2010 and maintained a cordial relationship. Within two months, defendant and victim began dating again. In March 2010, defendant visited victim’s home and installed two spyware programs on her computer. The first program recorded computer activity, including email, chats and website visits. The second program emailed defendant regular activity reports. On July 16, defendant and victim broke up. Following the breakup, defendant broke into victim’s apartment numerous times, stole various items from victim’s home (including jewelry, concert tickets, keepsakes and used condoms), threatened to publish nude photos of victim online, installed spyware on victim’s computer, installed hidden cameras in victim’s home, photographed victim through her windows, and disabled victim’s alarm system. After searching defendant’s home and computer, police discovered a computer file labeled “stalking,” dated images of items stolen from victim’s home, detailed written accounts on victim’s sexual activity, a lock-picking kit, various items stolen from victim's home, intercepted chats and emails from victim, and more than 40 hidden camera videos from victim’s home.

      • Outcome: The trial court judgment was affirmed, including the wiretapping counts for both installing spyware on victim’s computer and using hidden cameras to monitor victim’s activity. The court found that the unauthorized transmission and viewing of videos from within victim’s home constituted wiretapping because defendant made unauthorized use of victim’s router to intercept communications captured using the hidden cameras. The court also noted that “more illegal act[ivity] than simpl[e] wiretapping” was involved in obtaining the videos.

  1. Cal. Penal Code § 631.