ORS 165.540
Obtaining contents of communications


Mentioned in

9th Cir. Invalidates Oregon's Ban on Surreptitious Recordings of Conversations

The Volokh Conspiracy, July 5, 2023

“Because we conclude that section 165.540(1)(c) and its exceptions constitute a content-based speech restriction, we can uphold the statute only if it survives strict scrutiny.”
 
Bibliographic info

Ninth Circuit guts Oregon recording law

Courthouse News Service, July 3, 2023

“The ruling overturns a state law passed to ensure that journalists have the consent of any individual they record.”
 
Bibliographic info

(1)

Except as otherwise provided in ORS 133.724 (Order for interception of communications) or 133.726 (Interception of oral communication without order) or subsections (2) to (7) of this section, a person may not:

(a)

Obtain or attempt to obtain the whole or any part of a telecommunication or a radio communication to which the person is not a participant, by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, unless consent is given by at least one participant.

(b)

Tamper with the wires, connections, boxes, fuses, circuits, lines or any other equipment or facilities of a telecommunication or radio communication company over which messages are transmitted, with the intent to obtain unlawfully the contents of a telecommunication or radio communication to which the person is not a participant.

(c)

Obtain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained.

(d)

Obtain the whole or any part of a conversation, telecommunication or radio communication from any person, while knowing or having good reason to believe that the conversation, telecommunication or radio communication was initially obtained in a manner prohibited by this section.

(e)

Use or attempt to use, or divulge to others, any conversation, telecommunication or radio communication obtained by any means prohibited by this section.

(2)

Intentionally left blank —Ed.

(a)

The prohibitions in subsection (1)(a), (b) and (c) of this section do not apply to:

(A)

Officers, employees or agents of a telecommunication or radio communication company who perform the acts prohibited by subsection (1)(a), (b) and (c) of this section for the purpose of construction, maintenance or conducting of their telecommunication or radio communication service, facilities or equipment.

(B)

Public officials in charge of and at jails, police premises, sheriffs’ offices, Department of Corrections institutions and other penal or correctional institutions, except as to communications or conversations between an attorney and the client of the attorney.

(b)

Officers, employees or agents of a telecommunication or radio communication company who obtain information under paragraph (a) of this subsection may not use or attempt to use, or divulge to others, the information except for the purpose of construction, maintenance, or conducting of their telecommunication or radio communication service, facilities or equipment.

(3)

The prohibitions in subsection (1)(a), (b) or (c) of this section do not apply to subscribers or members of their family who perform the acts prohibited in subsection (1) of this section in their homes.

(4)

The prohibitions in subsection (1)(a) of this section do not apply to the receiving or obtaining of the contents of any radio or television broadcast transmitted for the use of the general public.

(5)

The prohibitions in subsection (1)(c) of this section do not apply to:

(a)

A person who records a conversation during a felony that endangers human life;

(b)

A person who records a conversation in which a law enforcement officer is a participant, if:

(A)

The recording is made while the officer is performing official duties;

(B)

The recording is made openly and in plain view of the participants in the conversation;

(C)

The conversation being recorded is audible to the person by normal unaided hearing; and

(D)

The person is in a place where the person lawfully may be;

(c)

Intentionally left blank —Ed.

(A)

A person who, pursuant to ORS 133.400 (Recording of custodial interviews of adults), records an interview conducted by a peace officer in a law enforcement facility; or

(B)

A person who, pursuant to ORS 133.402 (Recording of custodial interviews of juveniles), records a custodial interview, as defined ORS 133.402 (Recording of custodial interviews of juveniles);

(d)

A law enforcement officer who is in uniform and displaying a badge and who is operating:

(A)

A vehicle-mounted video camera that records the scene in front of, within or surrounding a police vehicle, unless the officer has reasonable opportunity to inform participants in the conversation that the conversation is being obtained; or

(B)

A video camera worn upon the officer’s person that records the officer’s interactions with members of the public while the officer is on duty, unless:
(i)
The officer has an opportunity to announce at the beginning of the interaction that the conversation is being obtained; and
(ii)
The announcement can be accomplished without causing jeopardy to the officer or any other person and without unreasonably impairing a criminal investigation; or

(e)

A law enforcement officer who, acting in the officer’s official capacity, deploys an Electro-Muscular Disruption Technology device that contains a built-in monitoring system capable of recording audio or video, for the duration of that deployment.

(6)

Intentionally left blank —Ed.

(a)

The prohibitions in subsection (1)(c) of this section do not apply to persons who intercept or attempt to intercept oral communications that are part of any of the following proceedings, if the person uses an unconcealed recording device or if the communications occur through a video conferencing program:

(A)

Public or semipublic meetings such as hearings before governmental or quasi-governmental bodies, trials, press conferences, public speeches, rallies and sporting or other events;

(B)

Regularly scheduled classes or similar educational activities in public or private institutions; or

(C)

Private meetings or conferences if all others involved knew or reasonably should have known that the recording was being made.

(b)

The prohibitions in subsection (1)(c) of this section do not apply to a person who, with the intent to capture alleged unlawful activity, obtains or attempts to obtain a conversation occurring through a video conferencing program if the person is a participant in the conversation, or at least one participant in the conversation consents to the recording, and:

(A)

The person is a law enforcement officer or is acting in coordination with a law enforcement officer;

(B)

The person is acting in coordination with an attorney or an enforcement or regulatory entity; or

(C)

The person reasonably believes that the recording may be used as evidence in a judicial or administrative proceeding.

(7)

The prohibitions in subsection (1)(a), (c), (d) and (e) of this section do not apply to any:

(a)

Radio communication that is transmitted by a station operating on an authorized frequency within the amateur or citizens bands; or

(b)

Person who intercepts a radio communication that is transmitted by any governmental, law enforcement, civil defense or public safety communications system, including police and fire, readily accessible to the general public provided that the interception is not for purposes of illegal activity.

(8)

Violation of subsection (1) or (2)(b) of this section is a Class A misdemeanor.

(9)

The exception described in subsection (5)(b) of this section does not authorize the person recording the law enforcement officer to engage in criminal trespass as described in ORS 164.243 (Criminal trespass in the second degree by a guest), 164.245 (Criminal trespass in the second degree), 164.255 (Criminal trespass in the first degree), 164.265 (Criminal trespass while in possession of a firearm) or 164.278 (Criminal trespass at a sports event) or to interfere with a peace officer as described in ORS 162.247 (Interfering with a peace officer or parole and probation officer).

(10)

As used in this section:

(a)

“Electro-Muscular Disruption Technology device” means a device that uses a high-voltage, low power charge of electricity to induce involuntary muscle contractions intended to cause temporary incapacitation. “Electro-Muscular Disruption Technology device” includes devices commonly known as tasers.

(b)

“Law enforcement officer” has the meaning given that term in ORS 133.726 (Interception of oral communication without order). [1955 c.675 §§2,7; 1959 c.681 §2; 1961 c.460 §1; 1979 c.744 §9; 1983 c.693 §1; 1983 c.740 §35; 1983 c.824 §1; 1987 c.320 §87; 1989 c.983 §14a; 1989 c.1078 §1; 2001 c.104 §54; 2001 c.385 §4; 2003 c.14 §62; 2007 c.879 §1; 2009 c.488 §2; 2015 c.550 §2; 2015 c.553 §1; 2019 c.216 §3; 2021 c.357 §2]

Source: Section 165.540 — Obtaining contents of communications, https://www.­oregonlegislature.­gov/bills_laws/ors/ors165.­html.

Notes of Decisions

Where officer stopped defendant for suspected use of intoxicants and tape recorded all conversation with defendant from time he approached car until shortly after arrest and tape showed officer informed defendant their conversation was being recorded two minutes after they began talking, error in admitting portion of tape recording which occurred before officer informed defendant of its existence was nonprejudicial. State v. Cooney, 36 Or App 217, 584 P2d 329 (1978)

Notwithstanding this section, employer who allegedly eavesdropped on employe’s telephone call was not necessarily aware that such activity was illegal, and thus employe could not seek discovery of employer’s consultations with attorneys with respect to such eavesdropping. State ex rel North Pacific Lumber v. Unis, 282 Or 457, 579 P2d 1291 (1978)

Proper sanction for failure to minimize interception of communications not covered by warrant is suppression of all intercepted communications. State v. Tucker, 62 Or App 512, 662 P2d 345 (1983), Sup Ct review denied

Where defendant called police dispatcher to seek assistance with disabled vehicle and telephone conversation was recorded, recorded message was admissible because it was “telecommunication” and dispatcher had consented to the recording. City of Lake Oswego v. Mylander, 84 Or App 15, 733 P2d 455 (1987)

This section provides independent basis for barring use of illegally obtained wiretap evidence for impeachment purposes. State v. Tucker, 90 Or App 506, 753 P2d 427 (1988)

This section is not overbroad or unconstitutionally vague. State v. Knobel, 97 Or App 559, 777 P2d 985 (1989), Sup Ct review denied

Since police broadcasts fall within exception to this section and public has free and ready access, no crime was committed when defendant tape recorded them on scanner. State v. Bichsel, 101 Or App 257, 790 P2d 1142 (1990)

This section requires person recording own conversation with others to give unequivocal warning to that effect. State v. Bichsel, 101 Or App 257, 790 P2d 1142 (1990)

Police officer is authorized to record conversation without ex parte order if officer has probable cause to believe conversation will involve unlawful drug transaction. State v. Evans, 113 Or App 210, 832 P2d 460 (1992); State v. Casteel, 122 Or App 218, 857 P2d 204 (1993)

Admissibility of body wire evidence is governed by ORS 41.910. State v. Casteel, 122 Or App 218, 857 P2d 204 (1993)

Warning that conversation was being “monitored” by camera and audio means sufficiently conveyed information that conversation was being recorded. State v. Haase, 134 Or App 416, 895 P2d 813 (1995), Sup Ct review denied

If required information is given, there is no additional requirement that defendant understand warning or consent to recording. State v. Haase, 134 Or App 416, 895 P2d 813 (1995), Sup Ct review denied

Omnidirectional signal broadcast by cordless telephone is not radio broadcast transmitted for use by general public. State v. Carston, 323 Or 75, 913 P2d 709 (1996)

For conversation to be “between” officer or person under officer’s control and another person, officer or person under officer’s control must be engaged in reciprocal conversation with other person. State v. Fleetwood, 331 Or 511, 16 P3d 503 (2000)

Existence of probable cause or exigent circumstances does not make conversations obtained without court order admissible. State v. Fleetwood, 331 Or 511, 16 P3d 503 (2000)

Exception allowing person to record telephone conversation of another in person’s own home applies both to recording of conversation and use of recorded conversation. Checkley v. Boyd, 198 Or App 110, 107 P3d 651 (2005), Sup Ct review denied

Where one participant in conversation specifically informs other participants that participant is obtaining conversation, other participants do not violate statute if they obtain conversation without providing such information. State v. Neff, 246 Or App 186, 265 P3d 62 (2011)

Evidence that marketplace for property exists but is unreliable is sufficient for trier of fact to conclude that market value of stolen items cannot reasonably be ascertained and that replacement value of stolen items may be used. State v. Mays, 294 Or App 229, 429 P3d 1061 (2018), Sup Ct review denied

Homeowner’s exception applies to subscribers to telecommunications and radio services (and their family members) who, in their homes, engage in conduct otherwise prohibited by subsection (1)(c) of this section, regardless of whether subscribed-to service is utilized to obtain conversation. State v. Evensen, 298 Or App 294, 447 P3d 23 (2019), Sup Ct review denied

Where mother surreptitiously recorded daughter’s conversations with father on landline and cellphone, recordings were admissible in custody determination under residence exception because mother was subscriber and recording occurred in mother’s home. Garland and Garland, 306 Or App 516, 475 P3d 105 (2020)

Attorney General Opinions

Inapplicability to public meetings of public governing bodies, (1976) Vol 38, p 50

165.002
Definitions for ORS 165.002 to 165.070
165.007
Forgery in the second degree
165.013
Forgery in the first degree
165.017
Criminal possession of a forged instrument in the second degree
165.022
Criminal possession of a forged instrument in the first degree
165.027
Evidence admissible to prove forgery or possession of forged instrument
165.032
Criminal possession of a forgery device
165.037
Criminal simulation
165.042
Fraudulently obtaining a signature
165.047
Unlawfully using slugs
165.055
Fraudulent use of a credit card
165.065
Negotiating a bad check
165.070
Possessing fraudulent communications device
165.072
Definitions for ORS 165.072 and 165.074
165.074
Unlawful factoring of payment card transaction
165.075
Definitions
165.080
Falsifying business records
165.085
Sports bribery
165.090
Sports bribe receiving
165.095
Misapplication of entrusted property
165.100
Issuing a false financial statement
165.102
Obtaining execution of documents by deception
165.109
Failing to maintain a cedar purchase record
165.114
Sale of educational assignments
165.116
Definitions for ORS 165.116 to 165.124
165.117
Metal property transaction records
165.118
Metal property offenses
165.122
Compliance with subpoena for information related to metal transaction
165.124
Application of ORS 164.857, 165.116, 165.117, 165.118 and 165.122
165.127
County metal theft plan of action
165.535
Definitions applicable to obtaining contents of communications
165.540
Obtaining contents of communications
165.542
Reports required concerning use of electronic listening device
165.543
Interception of communications
165.545
Prohibitions not applicable to fire or police activities
165.549
Prevention of telephone communications when hostage taken
165.555
Unlawful telephone solicitation of contributions for charitable purposes
165.560
Application of ORS 165.555
165.565
Optional local ordinances
165.570
Improper use of emergency communications system
165.572
Interference with making a report
165.575
Definitions for ORS 165.575 to 165.583
165.577
Cellular counterfeiting in the third degree
165.579
Cellular counterfeiting in the second degree
165.581
Cellular counterfeiting in the first degree
165.583
Exemptions from ORS 165.577, 165.579 and 165.581
165.657
Definitions for ORS 165.659 to 165.669
165.659
General prohibition
165.661
When provider of communication service may use devices
165.663
Use by police
165.667
Order by court
165.669
Duties imposed upon certain persons upon service of order authorizing installation of pen register or trap and trace device
165.671
Defense to civil or criminal action
165.673
Disclosure of results prohibited
165.690
Definitions for ORS 165.690, 165.692 and 165.694
165.692
Making false claim for health care payment
165.694
Aggregation of claims
165.696
Who may commence prosecution
165.698
Notice of conviction
165.800
Identity theft
165.803
Aggravated identity theft
165.805
Misrepresentation of age by a minor
165.810
Unlawful possession of a personal identification device
165.813
Unlawful possession of fictitious identification
165.815
Criminal impersonation
165.825
Sale of drugged horse
165.840
“Telegraphic copy” defined for ORS 165.845 and 165.850
165.845
Making and drawing of checks and notes by wire
165.850
Manner of expressing private and official seals in telegrams
165.990
Penalties
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