VIDEO: An NSA-made defense

By Edward D. Totino and Monica D. Scott

Recent revelations regarding the NSA's sweeping phone surveillance programs may have just sounded the death-knell for lawsuits brought under California's Invasion of Privacy Act (Cal. Pen. Code Section 630 et seq.) against companies that monitor or record telephone calls for quality assurance purposes. These lawsuits, typically filed as class actions, seek statutory damages of $5,000 for each telephone call that was recorded without informing the callers that the call may be monitored or recorded. They have resulted in multi-million dollar settlements even in the absence of the disclosure of any confidential information and even though no one has suffered any harm. However, widespread news coverage and public sentiment about the NSA's top secret warrantless wiretapping programs may negate any reasonable expectation of privacy that an individual may have that the telephone calls are not being monitored or recorded, an element required to state a valid claim under Section 632(a) of the act.

Section 632(a) prohibits the intentional recording of "confidential communications" without consent. Confidential communications are defined in Section 632(c) as those "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 any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded" (emphasis added).

A leading California case on the act, Flanagan v. Flanagan, 27 Cal. 4th 766 (2002), explained Section 632(c)'s two clauses, as follows: "the first clause includes within the statutory protection any conversation under circumstances showing that a party desires it not to be overheard or recorded. The second clause then excludes a conversation under circumstances where the party reasonably believes it will be overheard or recorded." In short, in order for a communication to be considered "confidential," under Section 632(a) plaintiffs must show that: (1) they had an expectation that the call is not being overheard or recorded and (2) that expectation is reasonable.

A plaintiff's ability to demonstrate he or she had a reasonable expectation that any call is not being overheard or recorded is now considerably more difficult, if not impossible, given the depth and scope of the NSA's phone monitoring programs, which have been reported to include the warrantless recording or monitoring of both international and domestic phone conversations. In addition to the PRISM Internet data-mining program, the existence of which was leaked to The Guardian by former government contractor Edward Snowden earlier this year, the Washington Post disclosed other secret programs targeting the contents of communications. See "U.S. Surveillance Architecture Includes Collection of Revealing Internet, Phone Metadata," June 15, 2013. For instance, one program "intercepts telephone calls and routes the spoken words to a system called NUCLEON." Other news outlets have reported the NSA's ability to "record nearly all domestic and international phone calls." See "NSA Spying Flap Extends to Contents of U.S. Phone Calls, CNet, June 15, 2013. Further surprising disclosures regarding the extensiveness of the NSA's surveillance programs, including the complicity of telecommunications providers in these programs, are reported daily.

As a result, it will be harder and harder for individuals to demonstrate that they had any expectation of privacy, let alone a reasonable expectation of privacy, in the contents of their phone conversations when it is widely-known that the U.S. government may be listening in or recording that very conversation.

While claims under Section 632(a) may be more difficult for individuals to bring in light of the NSA's surveillance activities, there may still be a chance for individuals to bring claims under a Section 632.7(a) of the act, which prohibits intercepting or receiving and recording communications transmitted between certain types of wireless phones. Unlike Section 632(a), Section 632.7 is not limited explicitly to "confidential communications." However, the courts may find that since anyone making a wireless telephone call now knows that call may be recorded, there is implied consent to recording simply by deciding to use a wireless phone. Consent is an absolute defense to a Section 632.7 claim.

Edward D. Totino is a partner in DLA Piper LLP's Los Angeles office. He can be reached at edward.totino@dlapiper.com.

Monica D. Scott is an associate in DLA Piper LLP's Los Angeles office. She can be reached at monica.scott@dlapiper.com.

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