## Facts

- During marital dissolution and related litigation, one spouse allegedly recorded telephone conversations without the other’s consent.
- J. Michael Flanagan filed a cross-complaint seeking civil remedies under the California Invasion of Privacy Act, alleging a violation of Penal Code § 632.
- Section 632 prohibits intentionally recording a “confidential communication” without the consent of all parties and provides civil liability through Penal Code § 637.2.
- The dispute turned on whether the calls qualified as “confidential communications” within the meaning of § 632.

## Issues

1. How should “confidential communication” in Penal Code § 632 be construed: by a reasonable expectation against being overheard or recorded, or by a reasonable expectation the content will not later be disclosed to third parties?

## Decision

- The California Supreme Court reversed the Court of Appeal and remanded.
- The court held a conversation is “confidential” under § 632 if a party has an objectively reasonable expectation the conversation is not being overheard or recorded.
- The court rejected the rule that a communication is confidential only if a party reasonably expects the content will not later be divulged to third parties.

## Legal Principles

- Under Penal Code § 632, “confidential communication” depends on whether participants may reasonably expect the conversation is not being overheard or recorded at the time it occurs.
- The confidentiality inquiry is objective; it does not hinge on whether a participant anticipates later voluntary disclosure by another participant.
- Communications in public gatherings, or in circumstances where participants reasonably expect to be overheard or recorded, fall outside § 632’s protection.
- Statutory interpretation of § 632 must follow its text and privacy-protective purpose, which targets secret monitoring and recording.

## Conclusion

The court clarified that § 632 protects against secret eavesdropping and recording when a party reasonably expects the conversation is not being overheard or recorded, and it sent the case back for further proceedings under that standard.


Flanagan v. Flanagan, 27 Cal. 4th 766 (Cal. 2002)