# Would this be a violation of two-party consent? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [February 20, 2019, 7:53pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916 "2019-02-20T19:53:43Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Jeff\_Lichtman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jeff_lichtman/32/1531_2.png) [@Jeff\_Lichtman](https://boards.straightdope.com/u/Jeff_Lichtman)\ **Post date:** [February 20, 2019, 7:53pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/1 "2019-02-20T19:53:43Z")
I’m posting this in IMHO because it’s a request for legal opinions on a partly hypothetical situation. A friend of mine is taking a class at a community college. Just yesterday, the prof told the students in the classroom to turn off their phones and put them away, and then proceeded to deliver an offensive rant that lasted nearly an hour. The rant didn’t have anything to do with course work or the behavior of the students. It included things like calling some of the students fat, claiming that black people are selfish and lazy, that having multiple sexual partners will cause babies to be “deformed,” that the government is using vaccines to sterilize people, and the the MeToo movement is a good place for guys to meet cute girls. Also, the prof claimed that she had installed microphones in the classroom lights. My question is, suppose one of the students had secretly recorded this rant and used the recording to try to get the school administration to discipline the professor. Would that be a violation of California’s two-party consent rule? My initial take on it was that the two-party consent rule applies only when there is a reasonable expectation of confidentiality, and that there is no such expectation in a classroom setting. In an on-line discussion that I won’t link to here, someone who seems to know what she’s talking about cited Flanagan v Flanagan, which you can read [here](https://caselaw.findlaw.com/ca-court-of-appeal/1462405.html?fbclid=IwAR1G-ICQ2TB_H59-sNSMmy54ALkO9zHscPBQZhn43Z4RDz-RaGRFgYuTGkM). This person says that Flanagan v Flanagan establishes that the prof does have a reasonable expectation of confidentiality in cases like this. On the one hand, the fact that the prof told people not to record anything could establish an expectation of confidentiality. On the other, the classroom setting and the nature of the rant would seem to argue against confidentiality. My reading of Flanagan v Flanagan shows that the courts will consider content when considering what’s confidential. The person I’m discussing this with says that because students have to pay to take the course, the classroom isn’t a public place that anyone could walk into, which supports the claim of confidentiality. What do all you legal experts say? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 20, 2019, 8:07pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/2 "2019-02-20T20:07:43Z")
I don’t know if the expectation of privacy is what the prohibition on recording would be based on. Given large class sizes it’s hard to argue that there is an expectation of privacy when there could be hundreds of students. I would think recording could be seen as detrimental to the learning environment and therefore be prohibited. [Here’s an article on this subject:](https://www.mercurynews.com/2017/02/15/can-students-record-a-teacher-as-a-study-tool-or-to-ward-off-politics-2/) > [@](#): > > Of the 20-plus colleges, universities and large school districts contacted across Southern California, all said students may not record in the classroom without the teacher’s permission. > > That stance is backed by state law, with one exception: Instructors must permit students with a disability to record if that helps them learn. Any violator could be disciplined by the school. The law in question is this I believe (though I’m not sure if this is for primary/secondary/post secondary): [California Code, Education Code - EDC § 78907](https://codes.findlaw.com/ca/education-code/edc-sect-78907.html) > [@](#): > > The use by any person, including a student, of any electronic listening or recording device in any classroom without the prior consent of the instructor is prohibited, except as necessary to provide reasonable auxiliary aids and academic adjustments to disabled students.  Any person, other than a student, who willfully violates this section shall be guilty of a misdemeanor. > > Any student violating this section shall be subject to appropriate disciplinary action. > > This section shall not be construed as affecting the powers, rights, and liabilities arising from the use of electronic listening or recording devices as provided for by any other provision of law. ---
**Author:** ![susan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/susan/32/17537_2.png) [@susan](https://boards.straightdope.com/u/susan)\ **Post date:** [February 20, 2019, 8:09pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/3 "2019-02-20T20:09:43Z")
Sounds like the prof might need a mental health eval more than discipline. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [February 20, 2019, 8:10pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/4 "2019-02-20T20:10:16Z")
> [@Jeff\_Lichtman](#): > > On the one hand, the fact that the prof told people not to record anything could establish an expectation of confidentiality. This doesn’t establish an expectation at all. Otherwise, Trump could stand up on a stage, in a huge stadium, in front of 70,000 people, and say, “All right, no recording, ok?..” It’s not private at all. It’s still a public setting, no matter how much one may want it to not be. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [February 20, 2019, 8:52pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/5 "2019-02-20T20:52:50Z")
> [@Velocity](#): > > This doesn’t establish an expectation at all. Otherwise, Trump could stand up on a stage, in a huge stadium, in front of 70,000 people, and say, “All right, no recording, ok?..” > > It’s not private at all. It’s still a public setting, no matter how much one may want it to not be. I’m not sure how public a setting needs to be to be considered “public” though. I probably couldn’t just walk into the class if I wanted (or maybe I could – never tried it.) My ten-person conversational classes seemed pretty non-public. But giant lectures feel less so. And I don’t know if the instructor’s . . . “lecture material” could be considered copyrighted. Although that’s a different legal tangle. As is what **Bone** mentioned. ---
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [February 20, 2019, 9:02pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/6 "2019-02-20T21:02:38Z")
> [@Ruken](#): > > I’m not sure how public a setting needs to be to be considered “public” though… Still the implication of Velocity’s point is interesting: in a marginal setting, does a _declaration_ by one party that they do not wish to be recorded alter the “reasonable expectation of privacy” test? ---
**Author:** ![GaryM](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/garym/32/241_2.png) [@GaryM](https://boards.straightdope.com/u/GaryM)\ **Post date:** [February 20, 2019, 9:12pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/7 "2019-02-20T21:12:34Z")
Doesn’t the two party rule vary from state to state? First Google hit says only 12 states require both parties consent. ---
**Author:** ![KneadToKnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kneadtoknow/32/3999_2.png) [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)\ **Post date:** [February 20, 2019, 9:24pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/8 "2019-02-20T21:24:54Z")
> [@GaryM](#): > > Doesn’t the two party rule vary from state to state? First Google hit says only 12 states require both parties consent. FWIW, the OP asks “Would that be a violation of California’s two-party consent rule?” ---
**Author:** ![GaryM](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/garym/32/241_2.png) [@GaryM](https://boards.straightdope.com/u/GaryM)\ **Post date:** [February 20, 2019, 10:15pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/9 "2019-02-20T22:15:27Z")
You are correct, I missed it in all the small print. Sorry. ---
**Author:** ![jnglmassiv](https://avatars.discourse-cdn.com/v4/letter/j/f07891/32.png) [@jnglmassiv](https://boards.straightdope.com/u/jnglmassiv)\ **Post date:** [February 20, 2019, 10:35pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/10 "2019-02-20T22:35:56Z")
That they paid to be there doesn’t change anything. There’s no expectation of privacy or confidentiality at a crowded theater, theme park line, or ballpark. Sometimes, sensitive audio gets anonymously released and no one is able to figure out who recorded it. However, the audio convincing enough to school administrators to launch an investigation and the speech is verified by others that were present. Other times, it’s just a transcript to the same end. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [February 20, 2019, 10:41pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/11 "2019-02-20T22:41:11Z")
> [@Ruken](#): > > And I don’t know if the instructor’s . . . “lecture material” could be considered copyrighted. Although that’s a different legal tangle. Likely not very relevant for several reasons. Copyright doesn’t protect you from people sharing your vile speech to shame you. It protects you from commercial exploitation. Fair use considers the impact on the potential market for the copyrighted material. So unless your professor was in the habit of publishing his racist rants, he probably doesn’t have much of a copyright claim. > [@Riemann](#): > > Still the implication of Velocity’s point is interesting: in a marginal setting, does a _declaration_ by one party that they do not wish to be recorded alter the “reasonable expectation of privacy” test? It’s probably relevant, but not the only factor. Also, note that “turn your phones off and put them away” isn’t actually a request to not be recorded. Maybe that’s what the professor meant, but he could as easily have meant “I don’t want to be interrupted”. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [February 20, 2019, 10:56pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/12 "2019-02-20T22:56:36Z")
Looks like it’s CA PC632 that might be relevant here (mentioned in the OP’s link). [Law section](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=632) It “excludes a communication made in a public gathering[,] or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded” without defining a “public gathering”. Although it must be a “confidential conversation”. If I’m communicating to multiple people in a closed room (a class in a lecture hall), I could see an argument that I can reasonably expect no one else to overhear me. Bur then that gets silly taken to the extreme, e.g. the Trump/stadium example. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [February 21, 2019, 12:24am UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/13 "2019-02-21T00:24:34Z")
There’s probably a complicated multi-factor test to determine if a gathering is public, but from a basic English definition, a classroom wouldn’t qualify, and a political rally probably would. The former is not open to the public (you have to be a registered student or invited), and the latter is. I don’t think it’s about number of attendees, but about the process of gaining admittance. ---
**Author:** ![Littleman](https://avatars.discourse-cdn.com/v4/letter/l/ccd318/32.png) [@Littleman](https://boards.straightdope.com/u/Littleman)\ **Post date:** [February 21, 2019, 12:34am UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/14 "2019-02-21T00:34:35Z")
Well florida actually had a similar case deciding this. Their two party consent law is worded extremely similar, however, they decided a persons place of business is somewhere they can’t expect reasonable privacy. California on the other hand seems to go the opposite way. The workplace is still protected. Unless the setting is public, which seems to hinge on whether non participants can over hear it. I would think non participants could not be expected to over hear outside the room so in this case I would be inclined to say microphones in the lights or the student recording would be legal in the context of a conversation between two individuals which anyone else could over hear but illegal in the context of the a conversation between students and teacher since overhearing parties would have to be outside the room, so in other words the students and teacher could expect reasonable privacy in a conversation that is supposed to be within the classroom between all of them. > **[Recording Your Co-Workers or Boss in CA - Legal? | Branigan Robertson](https://brobertsonlaw.com/recording-conversations-work-good-bad-idea/)** > > This page answers the question whether or not it is legal to record your boss or co-workers. This page was written by an employment lawyer. I would not expect a clear cut case though, it’s certainly grey area. ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [February 21, 2019, 6:19am UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/15 "2019-02-21T06:19:56Z")
> [@Jeff\_Lichtman](#): > > My question is, suppose one of the students had secretly recorded this rant and used the recording to try to get the school administration to discipline the professor? The second part would be relevant here. Would it be relevant in California? I have some privacy rights here, but they are trumped by the rights of the courts to hear evidence. After I appealed to the courts to overturn the decision of the school discipline committee, I’d expect my privacy-violating recordings to be accepted as evidence. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [February 21, 2019, 10:58pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/16 "2019-02-21T22:58:22Z")
> [@Melbourne](#): > > The second part would be relevant here. Would it be relevant in California? > > I have some privacy rights here, but they are trumped by the rights of the courts to hear evidence. After I appealed to the courts to overturn the decision of the school discipline committee, I’d expect my privacy-violating recordings to be accepted as evidence. Not a lawyer, but I bet it’s not that simple. Courts have an interest in seeing evidence, but hearing evidence that’s illegally obtained is bad, because it gives people an incentive to do illegal things. Fruit of the poisoned tree and all. ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [February 21, 2019, 11:12pm UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/17 "2019-02-21T23:12:14Z")
> [@iamthewalrus\_3](#): > > Not a lawyer, but I bet it’s not that simple. Courts have an interest in seeing evidence, but hearing evidence that’s illegally obtained is bad, because it gives people an incentive to do illegal things. Fruit of the poisoned tree and all. Around here), I think that the only recordings I could “illegally” make would not be illegal if made for the purpose of legal proceedings. IANAL and I don’t know how that works. In the specific case I was thinking of, the recordings weren’t “illegally obtained”. It would just be illegal to listen to them, or to store them in a way that was not appropriate for private personal information belonging to someone else. Like as if I had care of or access to someone else’s medical records. IOW, primarily a right-to-privacy issue. (The same privacy restrictions would apply to normally-illegal recordings as mentioned above). ---
**Author:** ![nearwildheaven](https://avatars.discourse-cdn.com/v4/letter/n/90db22/32.png) [@nearwildheaven](https://boards.straightdope.com/u/nearwildheaven)\ **Post date:** [February 22, 2019, 12:03am UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/18 "2019-02-22T00:03:57Z")
What was the purpose of said rant? What kind of class is this? ---
**Author:** ![Jeff\_Lichtman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jeff_lichtman/32/1531_2.png) [@Jeff\_Lichtman](https://boards.straightdope.com/u/Jeff_Lichtman)\ **Post date:** [February 22, 2019, 1:18am UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/19 "2019-02-22T01:18:16Z")
> [@nearwildheaven](#): > > What was the purpose of said rant? What kind of class is this? My friend didn’t identify the class or the prof. I think it was a kind of power play, where the prof was trying to piss off the students every way possible because she knew she could get away with it. Sick, I know, but I can’t think of any other motivation. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [February 22, 2019, 1:59am UTC](https://boards.straightdope.com/t/would-this-be-a-violation-of-two-party-consent/829916/20 "2019-02-22T01:59:23Z")
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