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Colorado

Reporter's Recording Guide

Last updated August 2021

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Summary

An individual not involved or present at a conversation must have the consent of at least one party to record an in-person, telephone or electronic communication.

Intercepting in-person conversations without consent is a misdemeanor, although it only applies when the parties have a reasonable expectation of privacy. The state also explicitly makes an allowance for recording by news media in some situations.

Intercepting electronic communications without at least one party’s consent and disclosing information gained through such means are both felony crimes under the state’s wiretapping law.

Violations of the state’s hidden camera law are misdemeanors.

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In-person conversations

The state’s eavesdropping law requires the consent of at least one participant to a conversation before any recording can take place, unless the parties to the conversation do not have a reasonable expectation of privacy (such as in public places). Colo. Rev. Stat. § 18-9-304; see Colo. Rev. Stat. § 18-9-301 (defining “oral communication”); People v. Lesslie, 939 P.2d 443, 446 (Colo. App. 1996) (holding that “oral communication” is synonymous with “conversation” as used in the eavesdropping statute).

Colorado specifically carves out an exemption for news media from its eavesdropping and wiretapping statutes, stating that its laws are not to be “interpreted to prevent a news agency, or an employee thereof, from using the accepted tools and equipment of that news medium in the course of reporting or investigating a public and newsworthy event.” Colo. Rev. Stat. § 18-9-305.

Individuals also have the right to record “any incident involving” a police officer in Colorado, regardless of consent. Colo. Rev. Stat. § 16-3-311. The police officer generally may not seize the recording or recording device without the individual’s consent, without a search warrant or subpoena, or unless it is done in certain emergency circumstances to save a life or prevent the destruction of the recording while a warrant is obtained. Id.

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Telephone and electronic communications

The consent of at least one party is required to overhear or record a telephone conversation or any electronic communication, according to the state’s wiretapping statute. Colo. Rev. Stat. § 18-9-303.

Because the provision of the statute dealing with electronic communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence” of any nature, consent of at least one party likewise is required to read or copy the contents of text or email messages sent between electronic devices. Colo. Rev. Stat. § 18-9-301.

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Hidden cameras

The state prohibits under its privacy laws anyone from knowingly observing or taking any visual images of another person’s body without consent in situations where the subject of the filming or photography has a reasonable expectation of privacy. Colo. Rev. Stat. § 18-7-801.

Individuals also have the right to record “any incident involving” a police officer in Colorado, regardless of consent. Colo. Rev. Stat. § 16-3-311. The police officer generally may not seize the recording or recording device without the individual’s consent, without a search warrant or subpoena, or unless it is done in certain emergency circumstances to save a life or prevent the destruction of the recording while a warrant is obtained. Id.

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Criminal penalties

Disclosure of information obtained illegally and violations of the state’s wiretapping statute are both felonies punishable by a fine of between $1,000 and $100,000 and one to two years in jail. Colo. Rev. Stat. § 18-1.3-401.

Recording communications from a cordless telephone, however, is a misdemeanor punishable by a fine of up to $5,000 and six to 18 months in jail. Colo. Rev. Stat. § 18-1.3-501.

Violations of the eavesdropping statute and the state’s hidden camera law are misdemeanors, carrying a sentence of up to one year in jail and fines up to $1,000. Colo. Rev. Stat. §§ 18-9-304; 18-1.3-501.

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Civil suits

Colorado does not generally authorize civil lawsuits against violators, except under the state’s law providing a right to record police officers without consent. Under that law, if an officer interferes with the right to record, seizes or destroys a recording or recording device in violation of this law, or retaliates against an individual for recording an incident involving a police officer, the individual may file a complaint and, if denied, a civil lawsuit against the law enforcement agency. Colo. Rev. Stat. § 13-21-128. The individual is entitled to $500 for each damaged or destroyed recording, the replacement value of the device, attorney’s fees, and punitive damages. Id.

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Disclosing recordings

Using or disclosing information obtained either by overhearing or recording conversations or by reading or copying electronic communications without at least one party’s consent is a felony, if there is reason to know the information was obtained illegally. Colo. Rev. Stat. § 18-9-303–04.

If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.

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Right to record government officials in public

A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.

The U.S. Court of Appeals for the Tenth Circuit, which includes Colorado, has not yet held that the First Amendment protects the right to record. In Frasier v. Evans, the court held that the right was not clearly established as of August 2014, but it declined to determine whether the right exists moving forward. Frasier v. Evans, 992 F.3d 1003, 1019 (10th Cir. 2021), petition for cert. filed, No. 21-57 (U.S. July 8, 2021).

A Colorado statute, however, protects the right to record any incident involving police officers, so long as the act of recording does not interfere with the officer’s lawful performance of his or her duties. Colo. Rev. Stat. § 16-3-311.

If a police officer interferes with an individual’s right to record, seizes or damages the recording device, or retaliates against the person for recording, that person may petition the law enforcement agency for reimbursement of the cost of any damaged or destroyed equipment, in addition to $500 for the loss of the recording itself. Colo. Rev. Stat. § 13-21-128. If that petition is denied, the person may bring a civil lawsuit against the agency for those costs. Id.

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