Was It Legal to Record Donald Sterling’s Conversation?

Donald Sterling, (former) owner of the Los Angeles Clippers, has become famous for the recent recording of his racist comments. Although Sterling already got what he had coming (the NBA banned him for life), it is interesting to consider how California’s wiretapping laws might apply to this case.

California’s wiretapping law is a “two-party consent” law. California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. See Cal. Penal Code § 632. The statute applies to “confidential communications” – i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). A California appellate court has ruled that this statute applies to the use of hidden video cameras to record conversations.

If Donald Sterling made this conversation in front of a crowd knowing that other people could hear him, this law would not apply. However, he made this conversation in a private, confidential setting with his girlfriend. As a result, the conversation would likely not be admissible in court.

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