Reporter's Recording Guide
Last updated April 2020Compare
An individual who is a party to a 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. However, most in-person conversations may not be recorded or disclosed unless all parties to the conversation are specifically informed that their conversation is being recorded. Or. Rev. Stat. § 165.540.Compare
It is unlawful to record an in-person conversation unless all participants to the conversation are specifically informed that it is being recorded. Or. Rev. Stat. Ann. §§ 165.535, 165.540.
However, the prohibition does not apply when recording, with an unconcealed recording device, statements that are part of any of the following proceedings: 1) public or semipublic meetings, such as hearings before governmental or quasi-governmental bodies, trials, press conferences, public speeches, rallies and sporting or other events; 2) regularly scheduled classes or similar educational activities in public or private institutions; or 3) private meetings or conferences if all others involved knew or reasonably should have known that the recording was being made. Id.
Thus, the Oregon Court of Appeals has held that the all-party notification requirement does not impermissibly burden the news media in violation of the First Amendment because it does not restrict a journalist’s right to communicate with individuals or gather news. Oregon v. Knobel, 777 P.2d 985, 988 (Or. Ct. App. 1989).Compare
Telephone and electronic communications
The consent of at least one party to any telephone conversation is required to record it. Or. Rev. Stat. § 165.540. And because the provision of the law dealing with wireless communications applies to the transmission of “writing, signs, signals, pictures and sounds of all kinds,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Or. Rev. Stat. Ann. §§ 165.535.Compare
It is a misdemeanor to photograph or record a person, without consent, “in a state of nudity” in a place where there is a reasonable expectation of privacy, such as in “a bathroom, dressing room, [or] locker room.” Or. Rev. Stat. § 163.700(1)(a), (2)(d). It is also a misdemeanor to photograph or record a person’s “intimate area” without consent, if the person has a reasonable expectation of privacy concerning this part of the body and has not exposed it to public view. Or. Rev. Stat. § 163.700(1)(b), (2)(f). 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 or electronic conversation is a misdemeanor offense. Or. Rev. Stat. § 165.540.Compare
Anyone whose oral, telephone or electronic conversation has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of violation, or $1,000, and can also recover punitive damages and attorney’s fees. Or. Rev. Stat. § 133.739.Compare
Disclosing the contents of an in-person, telephone or electronic conversation obtained through illegal recording is a misdemeanor. Or. Rev. Stat. § 165.540.
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 Ninth Circuit, which includes Oregon, has held that there is a First Amendment right to record matters of public interest in public places, which “includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); see also Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).Compare