Flanagan

California prohibits the recording of a telephone call without consent from all parties, but only if the call includes a “confidential communication.” (Pen. Code, § 632, subd. (a).) Violation of the law is a misdemeanor (ibid.) and may entail a civil penalty of $5,000 or three times the actual damages, whichever is greater (§ 637.2). Our Courts of Appeal have disagreed over the meaning of the critical term “confidential communication.” We granted review to resolve that disagreement.

One line of authority holds that a conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. (Frio v. Superior Court (1988) 203 Cal.App.3d 1480 [ 250 Cal.Rptr. 819 ] (Frio)] Coulter v. Bank of America (1994) 28 Cal.App.4th 923 [ 33 Cal.Rptr.2d 766 ].) Under the other line of authority, a conversation is confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties. (O’Laskey v. Sortino (1990) 224 Cal.App.3d 241 [ 273 Cal.Rptr. 674 ] (O’Laskey)] see Deteresa v. American Broadcasting Companies, Inc. (9th Cir. 1997) 121…