Obtaining contents of communications
Mentioned in
9th Cir. Invalidates Oregon's Ban on Surreptitious Recordings of Conversations
“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
“The ruling overturns a state law passed to ensure that journalists have the consent of any individual they record.”
Bibliographic info
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)
District attorney is not “law enforcement officer” as defined in this section. State v. Delaurent, 320 Or App 191, 514 P3d 113 (2022), Sup Ct review denied
Body-camera recording did not violate this section where it was recorded during felony that endangered human life, regardless of whether recording was initiated before felony occurred. State v. Copeland, 323 Or App 1, 522 P3d 909 (2022), Sup Ct review denied
Attorney General Opinions
Inapplicability to public meetings of public governing bodies, (1976) Vol 38, p 50
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