ELKINGTON, J. I respectfully dissent.
As I read our court’s controlling opinion we have, by judicial interpretation, fashioned an innovative penal statute with a coverage unintended by the Legislature. Such a statute was expressly rejected by Congress and is not to be found elsewhere among the states of the nation.
Penal Code section 631 provides: “Any person who, by means of any.. . instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection,[1] whether... inductively,[2] or otherwise, with any. . . telephone wire... or instrument. . ., or who willfully and without the consent of all parties to the communication . . . uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained... is punishable” etc.
[817]It is pleaded in the complaint that defendant Melvin Kahn did and performed each of those acts. Yet we hold that section 631 was not violated, because it applies “only to eavesdropping by a third party and not to recording by a participant to a conversation.” (Italics added.)
Penal Code section 632, as relevant, states: “Every person who, intentionally and without the consent of all parties to a confidential [telephone] communication, by means of any...recording device, eavesdrops upon or records such confidential communication... shall be punishable” etc.
Here again the complaint alleges that defendant Melvin Kahn did and performed each of those acts. However, we hold that section 632 was transgressed because, unlike section 631, it does apply “to a participant to the conversation.” Such a violation, it follows, is felonious and punishable by imprisonment in state prison and a forfeiture of $3,000 (§ 637.2) or $2,500 (§ 632) to the other participant for each such recording, regardless of whether damages were actually suffered.
Manifestation of a legislative intent that section 631 shall, and section 632 shall not, apply “only to eavesdropping” is not readily observable.
Our controlling opinion’s reliance is tripartite. It is upon: (1) the “dominant objective of the [Cal. Invasion of Privacy] act [Act], as reflected in its preamble,... ‘to protect the right of privacy of the people of this state’”; (2) a law review commentary, i.e., Van Boven, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182 (hereafter Mr. Van Boven); and (3) certain cases of the state’s Courts of Appeal, i.e., People v. Wyrick (1978) 77 Cal.App.3d 903 [144 Cal.Rptr. 38], Forest E. Olson, Inc. v. Superior Court (1976) 63 Cal.App.3d 188 [133 Cal.Rptr. 573], and Rogers v. Ulrich (1975) 52 Cal.App.3d 894 [125 Cal.Rptr. 306].
The Act’s preamble does more than reflect a legislative desire to “protect the right of privacy of the people of this state.” That protection, it adds, will be effected by the Act’s proscription of “eavesdropping upon private communications.” The preamble does not except section 632 from the Act’s declared purpose. One who records his telephone conversation with another is patently not “eavesdropping.” (“[E]avesdrop...: to listen secretly to what is said in private....” (Webster’s New Internat. Dict. (3d ed. 1965) p. 717.) Thus, the Act’s [818]express declaration of purpose eliminates a party to its “confidential telephone communication” from its coverage.
Mr. Van Boven asserts that California “is one of the few states to have outlawed participant monitoring by private parties.” (57 Cal. L.Rev., p. 1235.) Recourse to the two judicial opinions cited for that proposition discloses, aside from California, only two such states, Pennsylvania and Illinois.
The first of the two, Commonwealth v. Murray (1966) 423 Pa. 37 [223 A.2d 102], concerned a statute whose “precise purpose [was] to punish those who intercept [italics added] telephone communications without the consent of both parties.” A detective’s recording of an incriminating conversation with the consent of one party to the communication was held to be such an interception. Within the year the case was disapproved insofar as it suggested that a participant might not record his own conversation with another over a telephone that he was otherwise rightfully using. (Commonwealth v. Goldberg (1966) 208 Pa.Super. 513 [224 A.2d 91].) Murray may not now reasonably be deemed authoritative.3
[819]The other of the two judicial authorities relied upon by Mr. Van Boven is People v. Kurth (1966) 34 Ill.2d 387 [216 N.E.2d 154, 20 A.L.R.3d 409]. There the court interpreted an Illinois statute as forbidding recordation, without consent of the other party, by a participant in a telephone communication. But the statute was promptly amended to provide otherwise.4
Of the two statutes relied upon by Mr. Van Boven for his conclusion that of Michigan, as recodified in apparently the same language, provides that a person who “wilfully uses any device” to “record. . . any part of the private discourse of others” (italics added) is subject to criminal sanctions. (Mich. Stat. Ann., §§ 28.807(1), 28.807(3).) Participant recording is not proscribed. The other statute is of Nevada. As relevant, it recites: “[I]t is unlawful for any person to intercept or attempt to intercept any wire communication unless: (a) Such interception or attempted interception is made with the prior consent of one of the parties to the communication. . . . ” (Nev. Rev. Stat., § 200.620.) Recording of one’s telephone conversation may not reasonably be deemed “interception” of it. (See Parkhurst v. Kling, supra, 266 F.Supp. 780, 781 [fn. 3, ante].)
Judicial or other support (at least as of today) for Mr. Van Boveris dictum that California “is one of the few states to have outlawed participant monitoring by private parties” (italics added) is thus completely lacking.
[820]It is significant also, that while Mr. Van Boven insists that California has outlawed such practices, he elsewhere concedes that this may not be so. He says: “It was the intent of the drafters, and apparently the Legislature, to outlaw just such forms of consensual overhearing, unless all parties are apprised of the existence of the listener. That intent might not be effectuated, however....[![] Redrafting of this statute might be necessary to accomplish the intention of the Legislature,..(57 Cal.L. Rev., p. 1202; italics added, fn. omitted.)
I turn to the remaining support offered for our controlling decision.
People v. Wyrick, supra, 77 Cal.App.3d 903. Without consideration of the Act’s stated purpose of proscribing “eavesdropping” (italics added) upon private communications, the court relied upon Forest E. Olson, Inc. v. Superior Court, supra, 63 Cal.App.3d 188, Commonwealth v. McCoy (1971) 442 Pa. 234 [275 A.2d 28]5 and one of the two authorities relied upon by Mr. Van Boven, i.e., People v. Kurth, supra, 216 N.E.2d 154 (see fn. 4, ante).
Forest E. Olson, Inc. v. Superior Court, supra, 63 Cal.App.3d 188. Here the court placed its sole reliance upon the authority of Rogers v. Ulrich, supra, 52 Cal.App.3d 894, which will now be discussed.
Rogers v. Ulrich, supra, 52 Cal.App.3d 894. In a context closely paralleling that of the case at bench, Rogers filed an awkwardly fashioned two-count complaint for invasion of privacy against Ulrich. Count 1 was “for damages for recordation of a telephone conversation,” which although not expressly so stated was brought, as here, under Penal Code section 632. The second count was expressly founded on section 631. Summary judgment was granted defendant Ulrich as to the first count and later, after trial, judgment was entered for him on count 2. Upon Rogers’ appeal, the judgments were affirmed by Division Four of this court. Faced with the recognized ambiguity of the Act, the appellate court held that section 632 “arguably goes beyond the scope of section 631 in prohibiting not only eavesdropping, but also the recording of a confidential communication without the consent of all parties [821]to the communication.” (P. 899; italics added.) But, in resolving that ambiguity, and addressing itself to the issue “whether the statute covers the recording of a conversation made by a participant rather than by a third party” (p. 898), the court stated: “Penal Code section 630 is a declaration of legislative finding and intent; it speaks of preventing eavesdropping and other invasions of privacy, thus suggesting that participant recording was not meant to be included. ‘Eavesdropping’ is the problem the Legislature meant to deal with; ‘eavesdrop’ is defined in Webster’s Seventh New Collegiate Dictionary (1972) as ‘to listen secretly to what is said in private.’ It is never a secret to one party to a conversation that the other party is listening to the conversation; only a third party can listen secretly to a private conversation. The trial court was right in determining that appellant’s evidence did not make out a case under the statute.’ (Pp. 898-899; italics added, fn. omitted.)
Rogers v. Ulrich thus furnishes neither support for People v. Wyrick and Forest E. Olson, Inc. v. Superior Court, nor for the controlling opinion of this appeal. Indeed, if considered authoritative, it mandates affirmance of the judgment before us.
Nevertheless, it must be conceded that the Act contains some ambiguity. This is suggested by Mr. Van Boven, who advises that the Act is a product of an earlier “hodgepodge of statutes” which “left much to be desired.” It is “flawed” with “ambiguities” and “deficiencies and oversights,” and it “is badly in need of simplification.” (57 Cal.L.Rev., passim.) And it has been judicially observed that in “some aspects the provisions of [the Act] are patently ambiguous.” (People v. Wilson (1971) 17 Cal.App.3d 598, 602 [94 Cal.Rptr. 923]; italics added.)
The ambiguity of the Act is also pointed up by our controlling opinion where we consider the following language of Penal Code section 633.5: “Nothing in Section 631 or 632 shall be construed as prohibiting one party to a confidential communication” from recording it in aid of law enforcement. A meaning may perhaps be inferred that since section 632 does not also so provide, it does prohibit “one party to a confidential communication” from recording it. But section 633.5 may also be deemed but an iteration of the Act’s preamble, proscribing only “eavesdropping.” Section 637 is also significant; it purports to permit a party to a telephone communication who records it without permission of the other, to freely disclose the recording to third persons without exposure to the Act’s sanctions; such a statutory indulgence seems wholly at odds [822]with a purpose that the making of the recording nevertheless constituted a felony.
Such contradictions as appear in the Act lend force to Mr. Van Boven's observation of a “hodgepodge” of “ambiguities” “badly in need of simplification,” but they do not reasonably detract from the Legislature’s clearly announced objective to abolish “eavesdropping” upon private communications.
The ambiguity of our immediate concern is, of course, created by section 630’s stated purpose of proscribing “eavesdropping upon private communications,” and section 632’s forbiddance of eavesdropping upon, “or recording,” such communications. The issue is whether, by the unqualified term “recording,” the Legislature intended that the Act’s sanctions apply also to a party to private communications who does nonconsensually record them, but cannot, and thus does not, eavesdrop upon them.
An ambiguous statute should be read by us “in the light of the objective sought to be achieved by it,. .. ” (People v. Carroll (1970) 1 Cal.3d 581, 584 [83 Cal.Rptr. 176, 463 P.2d 400]; italics added.) Its discordant provisions should be “reconciled,” and “harmonized,” and the “integrity of both” should be maintained if at all possible. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 596 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038]; People v. Trieber (1946) 28 Cal.2d 657, 661 [171 P.2d 1]; Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 176 [74 P.2d 252]; all italics added.)
Such a reasonable accommodation of the two code sections does not appear difficult.
In drafting a statute proscribing “eavesdropping” upon private telephone communications it would soon become apparent that a closely related evil, and possible “loophole,” would be the nonconsensual recording of such a communication by a third party which, at least debatably, would not come under the narrow definition of “eavesdropping.” To cope with such an evil the Legislature might reasonably in drafting section 632, have added the words “or records” to the word “eavesdrops,” relying upon section 630’s expressly stated purpose, to give the statute the meaning of recording under circumstances where the malefactor, if actually listening, would have been eavesdropping..
[823]Other principles and rules of statutory construction, in my opinion, mandate such a construction.
It is, of course, a fundamental rule of statutory interpretation that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.’” (Tripp v. Swoap (1976) 17 Cal.3d 671, 679 [131 Cal.Rptr. 789, 552 P.2d 749], italics added; People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40 [127 Cal.Rptr. 122, 544 P.2d 1322]; Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918 [80 Cal.Rptr. 89, 452 P.2d 33]; Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672].)
Reasonably, and authoritatively, the Legislature’s purpose will best be perceived when it is expressly stated in the statute. “[Ojrdinarily it is the rule that, when the law-making power distinctly states its design in the enactment of a particular statute, no room is left for construction,. . .” (Coulter v. Pool (1921) 187 Cal. 181, 185 [201 P. 120], italics added; Federoff v. Birks Bros. (1925) 75 Cal.App. 345, 349 [242 P. 885].)
As has been noted, Penal Code section 630 is a preamble to the Act. It “declares” the legislative purpose to be the prevention “of eavesdropping upon private communications” (italics added) thus to “protect the right of privacy of the people of this state.” By definition one who is a party to a communication cannot “eavesdrop” upon it. The Act’s express declaration of purpose accordingly eliminates a party to its described telephone “communication” from its coverage. As stated by Coulter v. Pool, supra, 187 Cal. 181, 185, and Federoff v. Birks Bros., supra, 75 Cal.App. 345, 349, “no room is left for construction,. . .”
It may properly be emphasized at this point that we are concerned with a penal statute imposing a possible state prison term of three years for its violation. “When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.” (People v. Ralph (1944) 24 Cal.2d 575, 581 [150 P.2d 401].) The accused violator “is entitled to the benefit of every reasonable doubt... as to the. . . construction of language used in a statute.” (In re Tartar (1959) 52 Cal.2d 250, 257 [339 P.2d 553]; and see Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420]; People v. Baker (1968) 69 Cal.2d 44, 46 [69 Cal.Rptr. 595, 442 P.2d 675].)
[824]This principle is of constitutional concern. It is an established principle of constitutional law that “. . . a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” (Connally v. General Const. Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126]; Bowland v. Municipal Court (1976) 18 Cal.3d 479, 491 [134 Cal.Rptr. 630, 556 P.2d 1081].) “‘If a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable.’” (Shealor v. City of Lodi (1944) 23 Cal.2d 647, 653 [145 P.2d 574]; County of Los Angeles v. Riley (1936) 6 Cal.2d 625, 629 [59 P.2d 139, 106 A.L.R. 903].)
Moreover, as plaintiff urges and as pointed out, the Act imposes treble damages, or cumulative forfeitures of $2,500 or $3,000 for each violation without regard to the actual damages suffered. “The law traditionally disfavors forfeitures and statutes imposing them are to be strictly construed.” (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906 [98 Cal.Rptr. 57, 489 P.2d 1385]; and see Irwin v. Irwin (1977) 69 Cal.App.3d 317, 322 [138 Cal.Rptr. 9].) “Of two or more possible constructions, ‘the construction which avoids a forfeiture should be favored.’” (Flagg v. Andrew Williams Stores, Inc. (1954) 127 Cal.App.2d 165, 176 [273 P.2d 294].)
It must also reasonably be concluded that a breach of trust by a telephone communicant in recording his own conversation with another presents far less of a public evil than third-party interception, or eavesdropping. Such a rationale, we think, is widely recognized. Mr. Van Boven concedes that “the chilling effect of participant monitoring is generally less than that of third-party surveillance,” and it is “relatively innocuous.” It should, he says, “be classed as a misdemeanor at most and possibly freed from criminal sanctions altogether.” (57 Cal.L.Rev., pp. 1239, 1240 and fn. 332.) It seems most unlikely that the Legislature intended, nevertheless, to visit the awesome penalties of the Act upon persons situated as was Melvin Kahn who, guilty of neither eavesdropping nor interception, simply made a recording of his own telephone conversation with another.
[825]It is next noted that the Act has a federal counterpart in title 18, United States Code, chapter 119, sections 2510-2520, entitled, “Wire Interception and Interception of Oral Communications.” Section 251 l(2)(d) of that statute, as relevant, provides: “It shall not be unlawful under this chapter for a person.. .to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception. ...” (Italics added.)
The federal statute comports with the following rationale of Justice Byron White, concurring in Katz v. United States (1967) 389 U.S. 347, 363, fn. [19 L.Ed.2d 576, 589, 88 S.Ct. 507]: “When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment does not protect against unreliable (or law-abiding) associates.... It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another.” Lesser federal courts appear to have consistently applied that rationale in respect of the federal statute, and related constitutional principles. In United States v. DeVore (4th Cir. 1970) 423 F.2d 1069, 1074 (cert. den., 402 U.S. 950 [29 L.Ed.2d 119, 91 S.Ct. 1604]), the court said: “When a defendant has a conversation with another person he relinquishes his right of privacy with respect to that person. He may constitutionally complain of breach of privacy by an eavesdropper, but not of a breach of trust by the person he chooses to trust, however unwisely. Since the participants in a conversation are privileged to tell what was said, it necessarily must follow that a recording of what was said may either be used to corroborate the revelation, or simply as a more accute [j/c] means of disclosure.” (See also Koran v. United States (5th Cir. 1969) 408 F.2d 1321, 1323-1324 [cert. den., 402 U.S. 948 (29 L.Ed.2d 118, 91 S.Ct. 1603)]; United States v. Kaufer (2d Cir. 1969) 406 F.2d 550, 551-552 [affd. without opn. (1969) 394 U.S. 458 (22 L.Ed.2d 414, 89 S.Ct. 1223)]; Holt v. United States (10th Cir. 1968) 404 F.2d 914, 919-920 [cert. den., 393 U.S. 1086 (21 L.Ed.2d 779, 89 S.Ct. 872)].) It is reasonable to assume that had California’s Legislature intended to depart from this widely accepted rationale it would have said so in unmistakable language.
Consideration is overdue perhaps, of the related expressions on the subject before us by California’s Supreme Court. (See Auto Equity [826]Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)
Tavernetti v. Superior Court (1978) 22 Cal.3d 187 [148 Cal.Rptr. 883, 583 P.2d 737]. The high court upheld the Act against the People’s contention that the fruits of third-party eavesdropping upon a telephone communication should not be suppressed as evidence. In doing so, it stated (p. 192): “When the contents of a private wire communication, e.g., a telephone conversation, are intercepted by one not a party to the communication, disclosure is to be penalized” (italics added) by the Act.
People v. Conklin (1974) 12 Cal.3d 259 [114 Cal.Rptr. 241, 522 P.2d 1049]. The defendant had “installed [and used] a system designed to intercept” (p. 262, fn. 1) private telephone conversations of others. The court held that the Act’s requirement that all parties to a telephone communication give their consent to a third-party interception of it was not in conflict with preemptive federal law. It was iterated (p. 272, fn. 12) that the Act prohibits “the interception of wire communications.” (Italics added.) No suggestion appears that the Act forbids monitoring or recording by a party to the communication.
People v. Murphy (1972) 8 Cal.3d 349 [105 Cal.Rptr. 138, 503 P.2d 594] (cert. den., 414 U.S. 833 [38 L.Ed.2d 68, 94 S.Ct. 173]). Here the contention was that the recording of a telephone conversation was violative of an accused’s Fourth Amendment rights. It was held that the constitutional guaranty was “intended to protect. . . persons only from the ‘uninvited ear’. . ., not from a breach of trust by one of the parties to the conversation. ...” (P. 359.) Further, the court observed: “We . . . perceive no distinction between the risk one faces that the person in whom he confides will later breach that trust by testifying about the conversation and the risk that such person has already betrayed him and is instantaneously transmitting their conversation electronically to police equipped with radio receivers. . . . ‘For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to [the agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.’” (P. 360.)
Two cases of the state’s Courts of Appeal are also instructive.
[827]Rogers v. Ulrich, supra, 52 Cal.App.3d 894. This authority has been fully discussed. (See pp. 820 - 821, ante.)
People v. Buchanan (1972) 26 Cal.App.3d 274, 288 [103 Cal.Rptr. 66]. “[T]he prohibitory sections of the [Act] expressly apply only to intentional wiretapping [i.e., § 631] and eavesdropping.” (Italics added.)
Mr. Witkin’s review of the Act found no purpose to hold a party to a telephone communication subject to its sanctions. He concluded: “New P.C. 631 covers the subject of repealed P.C. 640. . .i.e., the crime of unauthorized interception of communications ‘without the consent of all parties’” and that “New P.C. 632 covers the subject of repealed P.C. 653j, i.e., eavesdropping on a ‘confidential communication’ by means of ‘any electronic amplifying or recording device.’” (Witkin, Cal. Evidence 2d (1977 supp. to ch. II) Exclusion of Illegally Obtained Evidence, §§ 147B-147C, pp. 301-302; italics added.)
For all of these reasons I am of the opinion that our holding in respect of section 632 of the Act is erroneous.
For yet another, and heretofore undiscussed, reason the result we have reached is believed by me to be legally unacceptable.
Our controlling opinion’s holding rests only upon Penal Code section 632. Plaintiff Warden’s contentions insofar as they are based upon section 631 have been rejected.
A strict requirement for the application of section 632 is that its subject be a “confidential communication,” which is defined to include “any communication carried on in such circumstances as may reasonably indicate that any party to such communication desires it to be confined to such parties,...”
Plaintiff Warden and defendant Melvin Kahn were, respectively, attorney and client. The telephone communications of the case concerned Warden’s legal representation of Kahn in “disputes and litigations” with others.
In respect of a “confidential communication” between a lawyer and client, the client is the “holder of the privilege” (Evid. Code, § 953); the lawyer is not. If the client shall “waive” the privilege he will have terminated its confidentiality (Evid. Code, § 912). The lawyer “is in no [828]position to assert [such] a privilege on his own behalf.” (Abbott v. Superior Court (1947) 78 Cal.App.2d 19, 21 [177 P.2d 317]; italics added.) (And see generally Witkin, Cal. Evidence (2d ed. 1966) Witnesses, § 794 et seq., p. 739 et seq.) Here the client must reasonably be deemed, as a matter of law, to have waived the confidentiality of his telephone communications with his attorney. It follows that the latter, plaintiff Lew Warden, had stated no cause of action under Penal Code section 632.
I would affirm the judgment of the superior court in its entirety.
A petition for a rehearing was denied January 3, 1980. Elkington, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied February 7, 1980. Bird, C. J., was of the opinion that the petition should be granted.
Any connection made with the line of a telephone company, without the consent of the company, is “unauthorized” within the meaning of section 631. (People v. Superior Court (Young) (1970) 13 Cal.App.3d 545, 548-549 [91 Cal.Rptr. 699].)
The parties are in agreement that the instant “unauthorized” telephone connections were made “inductively.”
“[Murray] prohibits the use of incriminating evidence obtained by a private detective ‘from the transcript of the illegally installed wire tape recording’. It is our view that the Murray case does not dictate an affirmance in the case at bar.... ‘A subscriber has an absolute right to record his own communications and to protect the use made of his own telephone.... The statute was enacted to protect a telephone subscriber’s line from the act of another person; not to safeguard it from his own act’.” (Commonwealth v. Goldberg, supra, 224 A.2d 91, 92-93; see also Commonwealth v. Donnelly (1975) 233 Pa.Super. 396 [336 A.2d 632, 639] [cert. den., 424 U.S. 974 (47 L.Ed.2d 744, 96 S.Ct. 1477)].) “[Murray] has been distinguished in a later Pennsylvania case, Commonwealth v. Goldberg, 208 Pa.Super. 513, 224 A.2d 91 (1966), on the ground that the Murray case did not involve the interception by a subscriber on his own line. The Goldberg court held that a subscriber had a ‘paramount right’ to make interceptions on his own telephone line. McGuire’s interception [i.e., “recording. . .of his telephone conversations”] in this case would seem to come within the Goldberg rather than the Murray rule,.. .” (United States v. McGuire (2d Cir. 1967) 381 F.2d 306, 315 [cert. den., 389 U.S. 1053 (19 L.Ed.2d 848, 88 S.Ct. 800)].) “[T]he Murray case was distinguished in a later Pennsylvania case, Commonwealth v. Goldberg, 208 Pa.Super. 513, 224 A.2d 91 (1966), on the ground that Murray did not involve the interception by a subscriber on his own line. The Goldberg court held that a subscriber had a ‘paramount right’ to make interception on his own telephone line. Remedio’s interception in this case comes within the Goldberg rather than the Murray rule. (United States v. Vespe (D.Del. 1975) 389 F.Supp. 1359, 1372 [aflfd. sub nom. United States v. Shaffer (1975) 520 F.2d 1369, cert. den., 423 U.S. 1051].) “[l]n Murray, a third party (private detective) listened to the conversation on the telephone extension. The Pennsylvania Supreme Court held this to be an interception, because permission to eavesdrop was not obtained from both parties to the conversation. .. . [11] The distinction between the Pennsylvania and Federal statutes, we think, is immaterial to the [819]question before us. We adhere to our earlier conclusion, primarily because neither law was intended to prohibit one party to a telephone conversation from recording that conversation for his own purposes. The ‘dirty business’ sought to be terminated by the Pennsylvania statute was the interception and recording by third parties of communications without the consent of all the parties thereto. When recording by one of his conversation with another shall have become an ‘interception’ of their conversation the word ‘intercept’ shall have taken on a new and different meaning indeed.” (Parkhurst v. Kling (E.D.Pa. 1967) 266 F.Supp. 780, 781.)
“The Kurth decision.. .is not controlling as it was a judicial interpretation of a legislative intent, which legislation has been changed since that decision.” (People v. Drish (1974) 24 Ill.App.3d 225 [321 N.E.2d 179, 183].) “Under the prior Eavesdropping Statute,... as interpreted by our supreme court, evidence obtained by eavesdropping devices could not be used unless the person against whom the evidence was being offered had consented to its recording. People v. Kurth, 34 Ill.2d 387, 216 N.E.2d 154. [¶] However, in 1969, the statute was amended.. . . [H] It is clear that the statute in its present form permits evidence to be introduced against a person, even if he has not consented to the eavesdropping, if any one other person has consented.” (People v. Knight (1975) 28 IlI.App.3d 232 [327 N.E.2d 518, 520].)
Commonwealth v. McCoy, supra, 275 A.2d 28, held that a person who records his own telephone conversation with another has “intercepted” the communication, a concept elsewhere repudiated by Pennsylvania (see fn. 3, ante) and, I think, by reason. As said in Parkhurst v. Kling, supra, 266 F.Supp. 780, 781: “When recording by one of his conversation with another shall have become an ‘interception’ of their conversation the word ‘intercept’ shall have taken on a new and different meaning indeed.” (And see generally fn. 3, ante.)