Is California a two-party consent state?

Penal Code § 632 requires the consent of all parties, but only for a confidential communication. § 632(c) defines that as one carried on in circumstances reasonably indicating that a party desires it confined to the parties, and excludes public gatherings, open proceedings, and situations where the parties can reasonably expect to be overheard or recorded. So § 632 has a confidentiality element, and it is a real one: an all-hands in a hotel ballroom is not the same as a closed room with four people in it.

Penal Code § 632.7 is the harder rule for modern meetings, and the one most summaries skip. For any communication to or from a cellular or cordless telephone, all parties must consent regardless of confidentiality. In Smith v. LoanMe, Inc., 11 Cal.5th 183 (2021), the California Supreme Court held that § 632.7 binds parties to the call, not only third-party eavesdroppers. If anyone in your meeting dialled in from a mobile, that is the provision you are under, and the confidentiality argument you might have had under § 632 is not available.

Around them sit § 631 on wiretapping, § 637 on disclosure by a non-party, and § 637.2, the civil action.

California is one of only a handful of states with real authority on this. In Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006), the court indicated that a business which adequately advises all parties at the outset of a conversation of its intent to record does not violate § 632, reasoning that Californians expect to be told at the outset and otherwise assume the call is not being recorded. Verbal notice at the outset is the accepted mechanism, and it must come before the recording. Kearney construes § 632 as prohibiting recording "without first informing all parties".

That continuing to speak after notice amounts to implied consent is the standard practitioner reading of Kearney, and it is the basis of every "this call may be recorded" announcement you have ever heard. It is strong practice rather than a squarely held opinion. Rojas v. HSBC Card Services, 93 Cal. App. 5th 860 (2023), found a plaintiff had impliedly consented under § 632, which supports the reading. But Kearney itself rejected the shortcut: the Court of Appeal below had suggested brokerage clients "know or have reason to know" calls are recorded, and the Supreme Court answered that nothing in the record established that as a matter of law.

Two practical notes. A beep tone audible to the parties is a recognised route under Public Utilities Commission General Order 107-B. And we found no California authority on a written notice in a calendar invite. The invite line is worth having as advance warning; it is not a substitute for saying it.

A first offence under § 631 or § 632 carries a fine of up to $2,500 per violation, or up to a year in county jail, or state prison, or both. A subsequent offence raises the fine to $10,000 per violation. Disclosure by a non-party under § 637 is reported at up to $5,000 and a year.

The civil exposure is the part that drives litigation. § 637.2 gives a private right of action for the greater of $5,000 per violation or three times actual damages, and expressly provides that actual damage is not a prerequisite to recovery. Injunctive relief is available too. "Per violation" is doing real work in a case with many recorded calls.

California is the reason this question has an answer at all. Kearney held that § 632 "applies when a confidential communication takes place in part in California and in part in another state", and did not treat that reach as exclusive: it concluded that Georgia's statute applied to the same calls as well. Two states' statutes reached one conversation, and California won the conflict on a comparative-impairment analysis, reasoning that complying with California law costs an out-of-state business only a sentence of notice.

One correction worth carrying, because most summaries get it backwards: Kearney is not a damages shield. The court declined to impose damages for past conduct only because the law had been genuinely unsettled, applied Georgia law to that past liability, and then closed the window, saying out-of-state companies "now are on notice that, with regard to future conduct, they are subject to California law".

The general problem, and why the working convention is to follow the strictest participant's rule, is on the US overview.

Said before the substance starts, so the consent is prior; asking a question, so an answer is on the record rather than inferred from silence; and offering a way out, which is what makes the answer mean anything.

Before we start: I'm recording and transcribing this meeting so I have accurate notes. It runs on my own laptop and nothing is uploaded. Is everyone okay with that? If anyone would rather I didn't, say so now and I'll turn it off.

Then leave a beat for an answer. Longer and shorter versions, and what to do when someone says no, are on telling people you're recording.

Earkeep records continuously and puts no bot in the participant list and no banner on anyone else's screen, so it discloses nothing to anybody. In an all-party state that is the whole of the obligation sitting on you. It does not know that someone dialled in from a mobile, and it does not know where anyone is, so it cannot tell you whether § 632.7 applies to your call.

What it can do is make the answer to an objection real, which matters more here than in a one-party state. A pause from the live edge releases the microphone and the system audio stream, so your operating system's own recording indicator goes dark and the person who asked you to stop can watch it happen rather than take your word for it. A recurring meeting on a connected calendar can be marked never-record, so the decision is made once. And a stretch of the day can be purged from the file afterwards, with no server copy anywhere, because there is no server.

Nothing about the architecture makes a recording lawful in California. The audio never leaving your device is a good answer to "where does this go", which is often the real question in the room, and it is not an answer to § 632.

• Cal. Penal Code § 632 and § 637.2, official text.
• Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006).
• Smith v. LoanMe, Inc., 11 Cal.5th 183 (2021).
• RCFP, Reporter's Recording Guide: California.

• US recording laws, state by state: the federal baseline, the cross-border problem, and all 51 jurisdictions.
• Telling people you're recording: the scripts, and the three ways to stop.
• Private by design: why the audio never leaves your computer.

This page is legal information, not legal advice. It summarises statutes and cases rather than replacing them, and we are not lawyers. If the answer matters, ask someone who can be held to their answer.