Donald Sterling's Alleged Racist Rants and the Legality of Recorded Telephone Conversations in California

There is no place for any type of discrimination in this world. If Sterling made these remarks (he has not yet admitted to being the person on the TMZ recordings), then he should be forced to face the consequences. I like Leigh Steinberg’s take on the situation as presented in his recent Forbes Magazine article.

One aspect of this story that hasn’t been discussed much is the legality of the alleged recorded telephone conversation between Sterling and his mistress, V. Stiviano. There’s been plenty written about Sterling’s alleged comments but not much about how California’s wiretapping law may have been violated. As such, here are my quick thoughts.

California Wiretapping Law

In California, it is a crime to record or eavesdrop on any confidential communication without the consent of all parties. This is called a “two-party consent law” and is referred to as California’s Invasion of Privacy Act (“CIPA”). The details can be found under California Penal Code §632. If Sterling’s mistress (or someone one her behalf) recorded Sterling without his permission, then a crime may have taken place in California.

I say this because confidential communications are protected. They are defined by California case law as being the types of conversations where at least one of the parties has a reasonable expectation of privacy that no one is listening in or overhearing the discussion. Flanagan v. Flanagan (2002) 41 P.3d 575. This ruling also applies, in my opinion, to private online video chats or the use of hidden video cameras to record conversations. California v. Gibbons(1989) 215 Cal. App. 3d 1204.

The test of whether or not you or Sterling have a reasonable expectation of privacy is an objective one. Absent Sterling’s consent, then I believe that expectation is present in a private telephone call as in this alleged call between Sterling and Stiviano.

If the call was made by a person on a speaker phone in a public or semi-public place and all parties knew this was happening, then the issue of whether or not there is a real objective expectation of privacy is probably not present. Based upon published reports to date, that public type of call did not happen here.

Civil Liability and Damages

In addition to the person who recorded Sterling’s alleged private telephone conversation being exposed to criminal penalties, including fines and jail time, that same person may also be subject to civil damages under Cal. Penal Code §637.2. Under this code section, the law provides for a private right of action and civil lawsuit.

The civil claim may be brought by “any person who has been injured by a violation of this chapter,” and that person may bring an action against the person who committed the violation for the greater of “either (1) $5,000” or “three times the amount of actual damages, if any sustained by the plaintiff.”

Published reports and Forbes magazine place Sterling’s original 1981 $12 million dollar investment in the LA Clippers as now being worth about $575 million. If, Sterling is damaged financially because of the any illegal recorded conversations, then under Cal. Penal Code §637.2(a), he may be able to seek monetary damages. In this case, the amount could be rather substantial.

Regardless of which state you’re making a telephone call in (and this probably includes online calls and videos), if you’re thinking about recording the conversation with a California resident or business, make sure to first get written or recorded permission.

So what do you think about the Donald Sterling LA Clippers situation? Should the NBA force Sterling out? Did he have a reasonable expectation of privacy? Is his mistress, Stiviano, to blame for any of this? Is there more to the story than what’s being reported? Share your thoughts and comments below?