Editor's Note: This story has been changed from the print version to correct a word in Terry Francke's quote from "recorded" to "reported." Corrected on Nov. 11, 2009.

Attorney General Jerry Brown's office has sparked debate about its interpretation of state privacy laws after it determined that a spokesman had not done anything illegal by secretly taping conversations with news reporters.

At issue is state penal code section 632, which prohibits the intentional recording without consent of "confidential communication."

While announcing the results of an internal investigation, Chief Assistant Attorney General Dane Gillette wrote that the privacy protection of such communication did not include on-the-record media interviews – a view that clashes with the common understanding of a state Supreme Court ruling on the law.

Under Gillette's interpretation, spokesman Scott Gerber, who resigned last week, did not break state law when he recorded six conversations with five reporters this year without asking for consent.

"Nothing in the legislative history of (section) 632 suggests that conversations of the type recorded by Gerber were intended to be covered by the statute," Gillette wrote. "Indeed the very purpose of an 'on the record' interview is to provide the reporter with statements that can later be used in the public media."

The controversy has been amplified politically as Brown plays the undeclared Democratic front-runner in next year's governor's election.

On Tuesday, the California Republican Lawyers Association called for an independent investigation into the matter by Alameda and San Francisco counties' district attorneys.

First amendment and privacy law experts disagreed with Gillette's memo but said the statute was vague enough to inspire clashing interpretations.

Several experts also pointed out that the memo appeared to clash with a state Supreme Court decision, Flanagan v. Flanagan, that found the law prohibited any non-consensual recording, regardless of its content.

"(The memo) in effect says, 'We're not going to push this law as far as the Supreme Court wants us to push it to,' " said Peter Scheer, executive director of the San Rafael-based First Amendment Coalition, which advocates for press freedoms. "'We're only going to go as far as the language of the statute goes.' "

Scheer said he largely agreed with the attorney general's reading and thought it suggested state prosecutors would be less likely to go after journalists who covertly record interviews.

Scheer's predecessor at the coalition, Terry Francke, disagreed, saying journalists conducting on-the-record interviews had no reason to believe they'd be recorded, a view he said was backed by several state court decisions.

"There's a big difference psychologically between the expectation that something I say may be repeated or reported and something I'm saying right now is being mechanically recorded as I'm saying it," Francke said.

And while Gillette made his opinion clear about the issue, the memo sets no precedent in a court of law, said Ryan Calo, a residential fellow at Stanford Law School's Center for Internet and Society.

"It purports to say something general, but you couldn't take that to the bank," Calo said. "Maybe you could feel comfortable that the attorney general won't bring an action against you if you're a reporter surreptitiously recording someone."

Call Jack Chang, Bee Capitol Bureau, (916) 326-5543.