The Basics of Oregon Recording Laws
Oregon is considered a ‘one-party’ consent state, which means that in most situations, only one party needs to give consent for a conversation to be recorded legitimately. However, this still depends on the specific context, as well as what is being done with the recording after it is made. The law is governed by Oregon Revised Statutes section 165.540. This states that it is a Class A misdemeanor for someone to use any type of device to intentionally record a conversation without the consent of the other participant or participants.
The most common exception to this is the conduct of law enforcement during criminal investigations, in which case the law enforcement is required to have consent if they are going to be recording a conversation. Outside of these distinct circumstances , it always depends on what the purpose of the recording is. If a person wishes to record a conversation for personal use and has the consent of at least one party involved, it does not usually present a problem. If the person recording is going around lying to people or using the recordings for commercial purposes, this could still make it a problem.
Even if the recordings can be used legally, they may not always be easy to use as evidence in a court of law. For example, if you are overheard on a recording making a self-incriminating comment, or harming the reputation of a business, that can be used against you or the organization in a court as evidence.
Still, as long as you consider the possible ramifications of your conversations being recorded, and get consent from one of the people speaking, you should be able to avoid legal issues when recording conversations in Oregon.
Definition of One-Party Consent Under Oregon Law
Consent to the recording of a conversation may be express or implied. Express consent occurs when one party explicitly agrees to the recording of the conversation before it happens. Implied consent is consent that is inferred from the circumstances. In Oregon, recording a face-to-face conversation without consent is unlawful. In situations where there is an expectation of privacy, such as a phone call, however, recording without consent is unlawful.
Oregon law defines the meaning of one-party consent as follows: "(1) ‘One party consent’ means that only one party to the communication in question must give consent for the recording or transmission of the communication and the communication that will result from the recording or transmission, to occur. (2)(a) A party gives one party consent under subsection (1) of this section if the party or the person giving consent is or has been given authority by the party to give the consent. . . . (3) For the purposes of this section, ‘authority’ means to possess general or special power of attorney, or express authority to consent on behalf of the party in question." For example, if Person A calls Person B on the telephone and is aware and agrees that the call is going to be recorded by Legally Sound, and Person A has authority to consent on behalf of Person B to record the telephone call, the recording is lawful. If Person B has no idea that the telephone call by Person A is being recorded, the recording is unlawful.
This concept applies not only to personal phone calls but also to business communications. For instance, if a person is calling to make a complaint on behalf of another person, the one making the complaint may not record the conversation if the call is not placed from that person’s phone, unless the caller has express authority to consent on behalf of the other person.
Permitted Exceptions to Oregon Recording Laws
Exceptions to the recording laws include exceptions to the one-party consent law that requires only one party to provide consent for recording of a conversation. In other words, though almost every state in the country is a one-party consent state, the potential exists for multiple-party consent laws in certain circumstances. The criminal law may have the following exceptions for when all parties must consent: There are also specific environments where recording conversations is prohibited and falls outside any of the exceptions already mentioned above. For example, recording in certain bathrooms, locker rooms, physicians offices, and even in hospitals and nursing homes can violate state law or hospital policy.
Telephone vs. Face-to-Face Recording
Both types of recordings have their pluses and minuses, and both require careful consideration of the legal issues involved.
But a big difference as to the legality is that a phone conversation can usually be recorded without compliance with any special requirements. In Oregon, as we have seen, in most circumstances it is not legally necessary to give the other person notice or seek consent in order to legally make an audio recording of the conversation. People generally can be recorded without their consent by the other parties to the conversation, even if the conversation is in a place where they might reasonably expect privacy, unless notice has been given that the conversation may be recorded.
In contrast, so far as I am aware, and until Oregon law changes in this area (and perhaps also including Washington and California), in most situations there can be no lawful recording of an in-person conversation unless the other party is given prior notice and either consents or has an opportunity at that time to object. If the other parties do object, then the in-person conversation may not be recorded.
Stereotypes aside, telephonic conversations and in-person conversations are not as equivalent as people often assume.
Penalties for Recording Illegally in Oregon
In addition to the moral and ethical issues that arise from illegal recording, there are potential legal consequences as well. While the actual wiretap statute at ORS 165.540 provides for Class C felony or Class A misdemeanor convictions, the penalty is actually reduced to Class A violation under the penalty phase of Measure 57. ORS 137.687 contains some mandatory minimum sentences for felonies, measure 57 removes all discretion for sentencing. What this means is that if your offense is a Class C felony and you have no prior felony convictions, the new sentence will just be a Class A violation with 6 months in jail (not a square year in jail). If you do have a prior felony filling up your criminal history, the illegal recording is still a Class C felony but the Court will have the option of not sending you to prison on that particular conviction. In these cases, non-prison alternatives to incarceration may be available . For Class A misdemeanors the sentence cannot exceed 364 days, which is a standard misdemeanor sentence.
With all this to tabulate, there is not an automatic jail sentence for recording a private conversation without consent of all parties in Oregon. There are much more serious crimes than this, like video voyeurism or making a video recording of a nudist couple in a spa. When there is actual victimization or sexual invasion of privacy, that is when police and prosecutors are much quicker to get involved. It all goes back to the old saying "what sex crime has not been tried twice?". Above all, this is a crime of opportunity. If you are contemplating secretly recording someone to capture some juicy gossip, or maybe a confession of sorts, stop and ask yourself about the consequences should you be caught. This most often happens to spouses or lovers who record out of anger and resentment.
Practice Points for Recording a Conversation in Oregon
If you are determined to record a conversation or phone call, take the following precautions to avoid a breach of state criminal or civil law:
- Use an App. If you really want to record those conversations and not worry about whether you are complying with Oregon law, it may be advisable to download a call recording app on your smart phone. There are many options for recording apps, and some will work better than others depending on your phone. Popular choices include Call Recorder, TapeACall, Call Recorder Lite and Call Recorder Free. You may need to pay for these apps, but in the end they may be well worth the cost.
- Ask Permission First. If you are not legally able to record the call or in person conversation and you don’t want to face a criminal or civil lawsuit, just make sure to ask permission to record the conversation. Record and save the conversation with that permission in mind.
- Always Say That You Are Recording So That There Is No Mistake. Even if you are in a one-party consent state, always disclose that you are recording. If your intention is to use the recording in court, be sure that you do a good job of disclosing that you are recording from the outset so that there is no question that you had full knowledge and did in fact record the conversation.
- Unless You Have Permission From All Parties, Don’t Record Private Conversations. Make sure you have permission to record the other person before doing so. Recording conversations without permission from all parties involved can land you in a lot of legal trouble. Your recording should also take place in a location where all parties can reasonably expect that a conversation isn’t being taped or recorded.
- Watch What You Do With the Recordings. Assuming you have followed the law, once you have the recordings or video footage make sure that you are careful what you do with it. Only use it for its intended purpose, and do not post it online.
Current Case Law and Legal Precedents
The Oregon Court of Appeals, in State v. Campbell, a case decided in 2016, found that the provision of phone services to inmates was not a search under the Fourth Amendment. The case, of a defendant charged with, among other things, solicitation to commit murder, turned on whether statements the defendant made to an individual in a phone call that was provided to the police as evidence could be used against him. In 2011, the police were called to the scene after a shooting as a result of the alleged solicitation. The police obtained warrants to wiretap the defendant’s phones of those in the home, and during the course of the investigation, the police learned that the defendant had communicated with a self-described "hit man" prior to his arrest. In light of that information, the police sought to seize the defendant’s recorded telephone conversations with his two brothers. The brothers learned they faced more than a year in prison for the illicit activity, and their rights were read to them prior to them speaking with police and entering into a plea agreement.
The defendant argued on appeal that the conversation between the three men was inadmissible at trial because the brothers were entitled to, but did not receive, the appropriate warnings under Miranda v. Arizona. The court disagreed, finding that the brothers were provided sufficient warnings that they faced a substantial prison sentence if they did not cooperate with the police. The Court held that the warnings were explained by the prosecutor and voluntarily signed by the brothers . Inasmuch as the State offered evidence that the State provided the appropriate warnings prior to their taped conversations, the convictions could stand.
In 2003, the Oregon legislature passed an amendment – O. R.S. 165.540 – to Oregon’s law regarding secret surveillance by electronic means. The law currently provides in part:
(1) Any person who, knowingly and intentionally and without the consent of all parties to the communications, overhears, intercepts or records by means of an electronic device a conversation transmitted by radio, electromagnetic, acoustic, photonic or other electromagnetic waves or impulses may be found guilty of a Class A misdemeanor.
(2) The prohibition in subsection (1) of this section does not apply to:
(a) A law enforcement officer, custodial officer, probation officer or parole and probation officer as those terms are defined in ORS 181A.355 and 181A.650, respectively, provided that the person is acting within the scope of official duties and in accordance with a written policy of the agency employing the person.
(b) A parent provided that the person is acting without any intent to commit a criminal or tortious act and in furtherance of a legitimate law enforcement purpose, including, but not limited to gathering evidence of theft, harassment or child abuse, and the person complies with applicable provisions of the Child Abuse Reporting Law.
The law leaves the door open for future legislative change, and what exactly constitutes an "electronic device" is left unclear at this time.