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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In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily crazy—Mother Jones' journalism is driven by one simple question: Will America will move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

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