Reporter's Recording Guide
Last updated July 2022Compare
An individual who is a party to an in-person, telephone or electronic conversation, or who has the consent of one of the parties to the conversation, can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act. Okla. Stat. tit. 13, § 176.4.Compare
The consent of at least one party to a conversation is required to record any oral communication “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstance justifying such expectation.” Okla. Stat. tit. 13, §§ 176.2, 176.4. Thus, consent is not required to record conversations in public where there is no reasonable expectation of privacy. However, the law criminalizes “secret loitering around any building with the intent to overhear discourse therein” and to “repeat or publish” such discourse “to vex, annoy, or injure others.” Okla. Stat. tit. 21, § 1202.Compare
Telephone and electronic communications
The consent of at least one party to any telephone conversation is required to record it. Okla. Stat. tit. 13, § 176.4. And because the provision of the law dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Okla. Stat. tit. 13, § 176.2.Compare
It is a felony to photograph or record, “in a clandestine manner for any illegal, illegitimate, prurient, lewd or lascivious purpose,” a person in a place where there is a reasonable expectation of privacy and to disclose any images obtained by these means, and a misdemeanor to clandestinely photograph or record the “private area” of a person, regardless of whether the person is in a public or private place. Okla. Stat. tit. 21, § 1171. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (e.g., filming conversations on public streets or in a hotel lobby).Compare
Illegally recording an in-person, telephone or electronic conversation is a felony offense. Okla. Stat. tit. 13, § 176.3.Compare
The law does not authorize civil lawsuits against violators.Compare
Disclosing the contents of an oral, telephone or electronic conversation obtained through illegal recording is a felony. Okla. Stat. tit. 13, § 176.3. And repeating or publishing the contents of a discussion or conversation overheard while secretly loitering around a building is a misdemeanor, when done with intent to “vex, annoy, or injure others.” Okla. Stat. tit. 21, § 1202.
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.Compare
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 Oklahoma, has held that “there is a First Amendment right to film the police performing their duties in public.” Irizarry v. Yehia, -- 4th ----, 2022 WL 2659462, at *6 (10th Cir. July 11, 2022). The Tenth Circuit noted that this right “falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power.” Id. at *9.Compare