Is prank calling illegal? A defense attorney explains (2024)

Posted on June 20, 2023

Prank calling can be illegal in some situations. While each state is different, most states prohibit making prank calls to annoy or harass someone. All states make it illegal to prank call 911.

Recording a prank call can constitute illegal wiretapping in many states, including in California. Annoying or harassing someone because of a protected trait (such as race or religion) can be a hate crime.

When is making a prank phone call illegal?

Depending on the state, making prank phone calls can be illegal if they intentionally:

• annoy,
• harass, or
• threaten the recipient.

They can also be illegal if:

• they amount to disorderly conduct,
• they are obscene,
• the prank caller records the call without the recipient’s consent, or
• the call is made to 911 or another emergency response number.

Since the advent of caller ID, which can identify prank callers by their phone number, these practical jokes have become less popular.

Criminal charges

Many states rely on general criminal laws to prosecute prank callers. Some of the most common laws that are used include those that cover:

• disorderly conduct – a “catch all” offense that covers anything that breaches the peace;
• harassment – which comprises unreasonably bothering and annoying a person;
• domestic violence – any offense committed between past or present significant others;
• stalking – which is putting someone in reasonable fear for their safety; and/or
• making bomb threats – which can carry serious penalties considering emergency services are called in, and entire areas may have to be evacuated.

However, some states have criminal statutes that are specifically designed for the crime of prank phone calls.

California law

California is one of those states. Its prank phone calling law, Penal Code 653m PC, prohibits these calls if they intentionally:

• use obscene language,
• threaten the recipient, the recipient’s family, or the recipient’s property, or
• make repeated calls in order to annoy or harass the recipient.¹

Violations of this law are misdemeanors in California. They can be punished with:

• up to 6 months in county jail,
• a fine of up to $1,000, and
• misdemeanor probation, with a mandatory term of counseling.²

Is it illegal to prank call a business?

Many states do not distinguish between prank calling individuals and prank calling businesses. This means that it can also be a crime to prank call a business. Additionally, making prank orders over the phone can lead to liability.

California law

California’s law is a good example. It prohibits using obscenity and making threats against individuals and businesses. However, its prohibition against repeated calls only covers individual recipients, not businesses. It also does not apply to calls made during the ordinary course and scope of business.³

However, prank phone calls made to businesses can lead to liability for any fake orders that are made.

Example

To make a prank, Mike orders 10 pizzas from the local pizzeria and has them delivered to Joe. When they are delivered, Joe is confused and refuses to pay the $150 for the pizzas. Mike will likely be held liable for them.

What about prank calling 911?

Making prank calls to emergency response numbers like 911 is far more likely to be a crime than other kinds of prank calls. Many states have specific statutes that prohibit this kind of call. Depending on what the caller says during the call, it can amount to making a false report of an emergency.

California law

In California, callers can face misdemeanor charges if their call results in, or court result in:

• the response of an emergency services vehicle, like a fire truck, ambulance, or police car,
• an evacuation, or
• the activation of the Emergency Alert System.⁴

Convictions for this criminal offense carry up to:

• 1 year of jail time, and/or
• a $1,000 fine.

The criminal charges become a felony if:

• the caller knows that the report of the emergency is false,
• the prankster should know that the response to the telephone call is likely to cause great bodily injury or death, and
• the report does cause great bodily injury or death.⁵

Swatting

These incidents have become more popular in recent years. They are known as “swatting.” The caller dials 911 and claims that there is a hostage situation at their target’s address. The intent is to get police officers and a SWAT team to respond and harass the victim.

Convictions for these offenses carry up to:

• 3 years in prison, and/or
• a $10,000 fine.

Callers can also be held liable for the costs of the emergency response.

Can it be a hate crime?

If the prank calls are targeting someone because of their protected trait or characteristic, it can amount to a hate crime. These calls would have to violate the state’s prohibition against prank calls or harassment, and the motive would have to involve the recipient’s protected trait.

Example

Zach calls Julie multiple times every day, using abusive language and threatening to hurt her because of her sexual orientation.

Is it illegal to record the call?

Many prank phone calls are done as a joke. To disseminate the joke, callers have to record the conversation with the recipient, normally without the recipient’s knowledge. In many states, this can amount to the crime of wiretapping.

Wiretapping is the act of illegally listening in on someone else’s phone conversation. In some states, it is legal to record a phone conversation if at least 1 party has consented to the recording. In other states, it is only legal to record the call if both of the parties, or all of the parties on a conference call, have consented.

California law

California’s wiretapping law, Penal Code 631 PC, makes California a “2-party consent” state. This means that everyone on the call has to consent to the recording. Recording a prank phone call without the recipient’s consent or knowledge, therefore, can amount to the crime of wiretapping.⁶

Wiretapping in California is a wobbler. Law enforcement can pursue the charge as either a misdemeanor or a felony.

If pursued as a misdemeanor, convictions carry up to:

• 1 year in jail, and/or
• $2,500 in fines.

If pursued as a felony, a conviction would carry up to:

• 16 months, 2 years, or 3 years in prison, and/or
• $10,000 in fines.

Legal References

1. California Penal Code 653m PC.
2. California Penal Code 653m(f) PC.
3. California Penal Code 653m PC.
4. California Penal Code 148.3 PC.
5. California Penal Code 148.3b PC.
6. California Penal Code 631 PC.

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