Privacy

Guide to Laws about Privacy in California

Legally speaking, privacy can mean many things, such as your right to prevent others from photographing you in certain places or publishing certain things about you. Or it can refer to your rights to your personal data, including identifying information or identity theft. Here are the basics.

You should also see additional federal/national laws at our Guide to Privacy in the U.S.

1. General privacy issues

Privacy laws that do not fall under a specific category, such as identity theft, may be considered under one or more of 3 general categories of privacy issues:

  • Intrusion upon seclusion: Individuals have a right to protection against unwarranted intrusion upon their solitude and private affairs
  • Public Disclosure of private facts: Individuals have a right to protection against the public disclosure of embarrassing or personal facts about their private lives
  • False Light: Individuals have a right to protection against publicity that places them in a false light

Using a person’s likeness (aka “right of publicity”)

The right to prevent others from using your likeness for commercial purposes is sometimes considered a privacy right, but it’s more of a “right of publicity.” In general, you can’t use another person’s “likeness” for a commercial purpose (to make money) without their permission. “Likeness” generally includes a person’s image, voice, name, signature, or anything else that would identify a particular person. This is called the “right of publicity” or the “right against appropriation.” For example, you can’t take a photo of someone to use in an ad campaign unless the person agrees to “release” these rights (often for a price).

See more at our Guide to Marketing & Merchandising.

Newsworthy exception: Exceptions to both “right of publicity” and the rights of privacy are when the subject is “newsworthy” or in the public interest.

2. Photography, video recordings, and peeping toms

Are other people allowed to photograph or record me in public without my consent?Paparazzi

In California, yes, people are allowed to take photos or video of you in public even if you don’t like it. Where you don’t have a “reasonable expectation of privacy,” including most public places, pretty much anything you do can be photographed or recorded.1Cal Penal Code §§630638Sanders v American Broadcasting Cos. (1999) 20 C4th 907

However, they may not “commercialize” (make money from it) your image without your consent. See more at our Guide to Marketing & Merchandising.

Are other people allowed to photograph or record me in private without my consent?

In California, you have the right to be free from “intrusion upon seclusion” and “unwarranted and undesired publicity.”2Gill v Curtis Publ’g Co. (1952) 38 C2d 273, 278; also see White v Davis (1975) 13 C3d 757, 775; Cal Const art I, §1

This generally means that people may not take photos or videos of you in a “private” place without your consent. Whether a particular location is “private” or “public” depends on whether or not you have a “reasonable expectation of privacy” in that location. Note that the legal definition of reasonable expectation of privacy may not match your own! Generally the inside of a home is considered private and possibly everything else is public.

So if you are in a public place, then most likely yes it’s legal for other people to record you. If you are inside a private home, even an AirBnB, it is likely a violation and invasion of privacy if there are cameras recording you. But surveillance cameras on the outside of the house are generally legal.

More specifically, it is an illegal physical invasion of privacy to enter the land or airspace above the land of a person without permission in order to take photo, video, etc (this is also considered illegal trespass).3Civ Code 1708.8(a)

Whether there was physical trespass or not, it is also an illegal invasion of privacy to use a device, like a telescopic lens, to take photos of a person engaging in any “private, personal, or familial” activity.4Civ Code 1708.8(b)

What is the “peeping tom” law?

While on another person’s property without permission (which in itself is illegal), it is illegal to peek in the door or window of any building where people live.5Cal Penal Code Sec 647(i)

Also even if you are legally on a property, it is illegal to look through a peephole or use a device such as binoculars or a drone (aka “unmanned aircraft system”) to look inside a room or place where someone has an expectation of privacy, with the intent to invade that person’s privacy.6Penal Code 647; AB 1129 (2019) It’s an additional crime to secretly photograph or record this person.7Cal Penal Code Sec 647(j) You can also sue people for violating your privacy in this way.8Cal Civil Code Sec 1708.8

3. Privacy & the Internet

See more about privacy and the Internet at our Guide to Laws about the Internet

4. Privacy for consumers

See more about consumer privacy at our Guide to Laws for Consumers.

5. Privacy & conversations

Are people or companies allowed to record a phone call they have with me? 

In California, it’s generally illegal to secretly record a private conversation with someone.9Penal Code 632 In order to legally record a private conversation, both parties must agree to it. This rule is usually called the “two-party consent law” or sometimes “all-party consent law.” BUT this does NOT apply to law enforcement (see law enforcement question below).

Often when you call a company’s customer service line, they will tell you something like “This phone call may be recorded for quality or training purposes.” Essentially you are agreeing to this recording by staying on the phone after you hear that. If you disagree, hang up the phone.

Are people allowed to record face to face (“real life”) conversations?

The same rule for phone calls applies to face to face conversations. You can’t legally record a private face to face conversation without the other person’s consent.10Penal Code 632 Again, this does NOT apply to law enforcement (see below)

Is wiretapping illegal in California?

Generally, yes (except when law enforcement do it – see below). Based on the “all-party consent law” in California, all of the parties to a private conversation must consent to a recording. Wiretapping or eavesdropping implies that you are listening in and/or recording without the knowledge of any of the parties, which is illegal.11Penal Code 631, 632

Can the police or other law enforcement wiretap or otherwise record my conversations?

If they have a court order, then yes they can.12Penal Code Sec 629.88 Law enforcement is subject to different rules on this than private citizens.

6. Privacy & Employers

What are my privacy rights with regard to my employer?

In California, whether you are an employee or prospective employee, your (prospective) employer may not require or request you to disclose your username or password for any social media, emails, texts or other similar communication. Your employer also may not ask you to access these in their presence so they can see it.13Cal. Labor Code Sec 980

Exceptions: your employer may do these things if part of an investigation into misconduct, or if necessary to access an employer-provided device.14Cal. Labor Code Sec 980

7. Privacy & the government

What are my privacy rights with regard to the police/government?

You have the right to be free from “unreasonable” searches by the government/police of your body or anything you are wearing, your home, and some other personal areas.

See more at our Guide to Laws on Police Conduct

8. Medical records

Do my health care providers or other professionals have the right to share my medical information with others without my permission?

Generally, no. See our Guide to Healthcare Law.

9. Mail

Is it illegal to read someone else’s mail without their consent?

Yes. See our Guide to Privacy Law in the U.S.

10. Identity Theft

What is identity theft and is it illegal?

Identity theft is when someone takes your personal information, such as your name, social security number, or financial information, and uses it for an illegal purpose. Identity thieves may try to open credit or loan accounts with your information, or could generally harm your reputation. All of this is illegal in California.15Penal Code starting at sec 530.5

Exercise Your Rights

More Resources

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