2015 ORS 165.540¹
Obtaining contents of communications

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

(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) The prohibitions in subsection (1)(c) of this section do not apply to persons who intercept or attempt to intercept with an unconcealed recording device the oral communications that are part of any of the following proceedings:

(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.

(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]

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 (Certain intercepted communications inadmissible). 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)

Atty. Gen. Opinions

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

Chapter 165

Law Review Cita­tions

51 OLR 427-637 (1972)


1 Legislative Counsel Committee, CHAPTER 165—Offenses Involving Fraud or Deception, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors165.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 165, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano165.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.