                                    TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                         OFFICE OF THE ATTORNEY GENERAL
                                                   State of California

                                                 DANIEL E. LUNGREN
                                                    Attorney General
                                        ______________________________________

                                    OPINION                 :
                                                            :       No. 97-703
                                     of                     :
                                                            :       December 5, 1997
                           DANIEL E. LUNGREN                :
                              Attorney General              :
                                                            :
                          ANTHONY M. SUMMERS                :
                           Deputy Attorney General          :
                                                            :
                    ______________________________________________________________________

                         THE HONORABLE JAMES L. BRULTE, MEMBER OF THE CALIFORNIA SENATE,
         has requested an opinion on the following question:

                           May a California innkeeper electronically record all incoming telephone conversations so
         that a voiceprint may be obtained in the event a bomb threat is made?


                                                       CONCLUSION

                           A California innkeeper may not electronically record all incoming telephone conversations
         so that a voiceprint may be obtained in the event a bomb threat is made. However, an individual telephone
         conversation that contains a bomb threat may be recorded.

                                                         ANALYSIS

                           We are advised that bomb threats made by telephone callers to hotels and motels have
         become an increasing problem for innkeepers throughout the state. We are asked whether, as a means of
         preserving evidence that may be used to identify and prosecute those who make such threats, an innkeeper
         may electronically record all incoming telephone calls. Specifically, may innkeepers use a recording device
         similar to an aircraft's cockpit voice recorder in which the tape would be examined or replayed only in the
         event a threat were received? Otherwise, the tape would be erased by recording the next conversation. No
         calls to guests would be recorded, and no warning device would advise callers of the recording. We conclude
         that such a procedure recording all incoming telephone calls would violate California law. However, an
         individual telephone conversation containing a bomb threat may legally be recorded.

                          The Legislature has enacted a comprehensive statutory scheme, the Privacy Act (Pen. Code,
         §§ 630-637.6), Footnote No. 1 governing and generally prohibiting the "invasion of privacy," including the
         recording of telephone conversations. Section 630 states:

                          "The Legislature hereby declares that advances in science and technology have led to

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               the development of new devices and techniques for the purpose of eavesdropping upon private
               communications and that the invasion of privacy resulting from the continual and increasing use
               of such devices and techniques has created a serious threat to the free exercise of personal
               liberties and cannot be tolerated in a free and civilized society.

                            "The Legislature by this chapter intends to protect the right of privacy of the people
               of this state.

                           "The Legislature recognizes that law enforcement agencies have a legitimate need to
               employ modern listening devices and techniques in the investigation of criminal conduct and the
               apprehension of law-breakers. Therefore, it is not the intent of the Legislature to place greater
               restraints on the use of listening devices and techniques by law enforcement agencies than
               existed prior to the effective date of this chapter."

         Section 631 implements these legislative policies by providing:

                           "(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 in the state prison, or by both a fine and imprisonment in the county jail or in the
               state prison. . . .

                            "(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. . . ."

         Section 631 is supplemented by prohibitions against the interception of cellular telephone communications
         (§ 632.5), cordless telephone communications (§ 632.6), and the recording of such communications
         (§ 632.7).

                          While the foregoing statutes deal with the interception of telephone conversations (generally
         referred to as "wiretapping"), the Legislature has also prohibited the use of electronic equipment to eavesdrop
         on any confidential communications. Section 632 states:

                          "(a) Every person who, intentionally and without the consent of all parties to a
               confidential communication, by means of any electronic amplifying or recording device,
               eavesdrops upon or records the confidential communication, whether the communication is
               carried on among the parties in the presence of one another or by means of a telegraph,
               t l h          th d i             t    di h ll b      i h d b fi        t       di t

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               telephone, or other device, except a radio, shall be punished by a fine not exceeding two
               thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one
               year, or in the state prison, or by both that fine and imprisonment. . . .

                            "(b) The term `person' includes an individual, business association, partnership,
               corporation, limited liability company, or other legal entity, and an individual acting or
               purporting to act for or on behalf of any government or subdivision thereof, whether federal,
               state, or local, but excludes an individual known by all parties to a confidential communication
               to be overhearing or recording the communication.

                           "(c) The term `confidential communication' includes any communication carried on in
               circumstances as may reasonably indicate that any party to the communication desires it to be
               confined to the parties thereto, but excludes a communication made in a public gathering or in
               any legislative, judicial, executive or administrative proceeding open to the public, or in any
               other circumstance in which the parties to the communication may reasonably expect that the
               communication may be overheard or recorded.

                          ".........................................

                           "(e) This section does 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 by this section 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. . . ."

                          The foregoing statutes constitute a general prohibition on wiretapping and eavesdropping.
         They would prohibit the use of an electronic device to record incoming telephone calls to a hotel or motel
         unless (1) such calls are not deemed to be confidential or (2) there is an exemption available for innkeepers.
         We will consider each of these possibilities in turn.

                         In Ribas v. Clark (1985) 38 Cal.3d 355, the court ruled that listening to a telephone
         conversation on an extension telephone without the knowledge of the caller violated section 631. The court
         stated:

                           ". . . the Privacy Act has long been held to prevent one party to a conversation from
               recording it without the other's consent. [Citations.] While one who imparts private information
               risks the betrayal of his confidence by the other party, a substantial distinction has been
               recognized between the secondhand repetition of the contents of a conversation and its
               simultaneous dissemination to an unannounced second auditor, whether that auditor be a person
               or mechanical device. [Citation.]

                            "As one commentator has noted, such secret monitoring denies the speaker an
               important aspect of privacy of communication -- the right to control the nature and extent of the
               firsthand dissemination of his statements. [Citation.] Partly because of this factor, the Privacy
               Act has been read to require the assent of all parties to a communication before another may
               listen. [Citation.]" (Id., at pp. 360-361.) Footnote No. 2

                           A similar conclusion was reached by the court in Frio v. Superior Court (1988) 203
         Cal.App.3d 1480, where one party to a telephone conversation, without the knowledge or consent of the other
         party, used a telephone answering machine to record the conversation. The court observed:



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                            "The legislative history of section 632 is replete with references to the Legislature's
               intent to strengthen then existing law by `prohibiting wiretapping or "electronic eavesdropping"
               without the consent of all parties to the communication which is being tapped or overheard.'
               (Italics added.) [Citations.]" (Fn. omitted.)

                          Of course, consent to the recording of the conversation may be implied. In O'Laskey v.
         Sortino (1990) 224 Cal.App.3d 241, the court concluded that a telephone conversation could be recorded by a
         caller who identified himself as the producer of a television quiz show and the person called believed his
         answers to the questions asked would be broadcast to those listening to the show. The court observed that the
         defendant "[w]ith visions of dollars dancing in his head . . . eagerly answered questions . . . . [Defendant] had
         every reason to hope that his statements would be broadcast into every home with cable television." (Id., at p.
         249; see also Detersea v. American Broadcasting Companies, Inc. (9th Cir. 1997) 120 F.3d 460, 464-465.)

                           No consent may be implied here on behalf of those making the telephone calls to hotels and
         motels. On the contrary, persons calling hotels and motels may be disclosing personal information as to when
         they will be staying at the hotel or motel (perhaps indicating when their homes will be vacant), the names of
         others traveling with them, home telephone numbers (possibly not listed in a telephone directory), and credit
         card information. The callers would have an objective expectation of privacy and confidentiality, granting no
         implied consent to a recording of the conversation.

                           As for exemptions from the statutory prohibitions, none may be found applicable to hotel or
         motel operators. (See § 633.) However, we note that an innkeeper (or any other person) may record a specific
         telephone call during which a bomb threat is made. Section 633.5 explicitly permits the recordation of calls
         relating to the commission of certain crimes:

                            "Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a
               confidential communication from recording the communication for the purpose of obtaining
               evidence reasonably believed to relate to the commission by another party to the communication
               of the crime of extortion, kidnapping, bribery, [or] any felony involving violence against the
               person. . . ."

         In People v. Suite (1980) 101 Cal.App.3d 680, 689, the court rejected any claim of confidentiality in
         connection with recording a bomb threat, noting: "A bomb threat unquestionably involves the potential for
         such violence." The person making the recording, however, must reasonably believe that the particular call
         relates to the commission of a crime in order to come within the statutory exemption.

                           We thus conclude that a California innkeeper may not electronically record all incoming
         telephone conversations so that a voiceprint may be obtained in the event a bomb threat is made. However,
         an individual telephone conversation that contains a bomb threat may be recorded.

                                                                 *****

         Footnote No. 1
         All references hereafter will be to the Penal Code unless otherwise designated. Return to text
         Footnote No. 2
         The court rejected the argument that an extension telephone could come under the exception for equipment "furnished and
         used pursuant to the tariffs of a public utility." (§ 631, subd. (b)(2).) The court stated:

                             ". . . Defendant's view that section 631, subdivision (b), allows third persons to eavesdrop on
               conversations via extensions would be `a clear contradiction of the intent of section 631(a).' [Citation.]
               Moreover, the tariff exception was obviously designed to allow the use of various types of recording and
               monitoring equipment -- including speaker phones and telephone answering machines -- because compliance
               with the tariffs in such cases will normally preclude eavesdropping: the tariffs require the use of warning
               devices on recorders and generally stipulate that other types of equipment not be used in a manner allowing


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         devices on recorders, and generally stipulate that other types of equipment not be used in a manner allowing
         unauthorized persons to overhear conversations. [Citation.]" (Id., at p. 363.)




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