Worcester, MA asked in Consumer Law, Communications Law, International Law and Internet Law for California

Q: Is someone allowed to be recorded without consent in a Discord Server (an internet chat forum) Under CA penal Code 632?

Discord is an online chat space for people who are playing video games. It is privately owned, and has it's own terms of service. Discord itself has a rule about following California's law. However, there is an argument that the chat service is a public space seeing as anyone on the service can join the room provided they have a key provided by the owner of the server. Would this chat forum be considered a public space so CA Penal Code 623 does not apply, or does it apply? Here is a link to the Discord TOS https://discord.com/terms

1 Lawyer Answer
William John Light
William John Light
  • Santa Ana, CA
  • Licensed in California

A: Section 632 applies to recording of "confidential communications" which are carried on by means of a telegraph, telephone or other device, which seems to cover everything. However, 632.5 through 632.7 were added in 1968 to include cellular radio telephones and cordless telephones. If 632 applied to every device, section 632.5 and 632.7 were not required, and that violates a rule of statutory construction. None of the statutes specifically prohibits recording online chats by computer. It's possible that the statutes do not apply at all.

If the statutes do apply, did you have a reasonable expectation of privacy in a public online chat? Does the interface include a recording button? If so, were you aware of it? Were you aware that it was a public chat that anyone could overhear? Whether you have a reasonable expectation of privacy includes examining a lot of facts that we don't know.

Were the people who were recorded in CA? Were the people who did the recording in CA? California may not have jurisdiction to enforce section 632 to conduct that occurred outside the state.

The TOS may apply to govern the relationship between Discord and the users, but would not likely apply to govern the relationship between the users and other users. Finally I haven't read the TOS. If you want that level of service, you will have to pay for it.

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