By Rose L. Hubbard, Attorney at Law
You suspect your teenage son is buying illegal drugs, so you put a recording device on your home phone, to be able to monitor his calls without his consent. That’s okay, right? It’s for your son’s own good. But what if you want to record his cell phone calls, and you arrange with the cell phone company to record all of his conversations because after all, you pay for the phone, and it’s for his own good, right? But what if your son is late for curfew, you go out looking for him, and you see him talking to a person of questionable quality. No problem, you whip out your cell phone, that wonderful smart phone that has audio recording and video recording capacity, and you start recording your son and that person of questionable quality. You can’t hear what they are saying at first, and your son can’t see you, but you move closer and closer, video recording and now you are starting to pick up audio. Sure enough, the moment you feared is happening. Your son hands that questionable person money, and then takes a small bag of white powder in exchange. It’s still all good, right? It’s for his own good.
Or maybe you are getting a divorce. You are standing outside your house, and your wife opens the door, and gives a very intimate embrace to the appliance repair man, far more intimate than what you have received in a long time. You lift up your phone, flip on the video recorder, and record the whole steamy conversation and the nonverbal communication. That’s what those phones are for, right? Any one who looks up YouTube will see video recordings of funny scenes when the other person doesn’t know they are being recorded. Everybody does it, so it must be legal, right?
You are recording the telephone call of your child when your child is talking to the other parent, and you hear the other parent encouraging your child to not obey the rules of your household. You later confront the other parent with the evidence of the recording, and the other parent is outraged that you intruded on a private conversation. You are in hot water, right?
ORS 165.540(1)(a) prohibits a person from obtaining the whole or any part of a telecommunication to which the person is not a participant,by means of any device, unless consent is given by at least one person. ORS 165.535 defines “telecommunication” as the transmission of writing, signs, signals, pictures and sounds of all kinds by aid of wire, cable or other similar connection between the points of origin and receiption of such transmission. There is a significant exception that this does not apply to subscribers or members of their family who perform the acts prohibited or if it takes place in your home.
In the example where you are recording the telephone call of your child on your phone, it is probably legal to do so. You pay for the phone, you are the subscriber, and it is a member of your family. Further, the recording probably happened in your home. It may not be that clear, however. What if you moved from another state, and retained your old phone number? At that point, the signal may be crossing state lines as it is bounced back and forth from satellite receivers. Your action may be covered under Oregon law, which would allow the recording, or it may be covered under federal law, which does not allow the recording, or it may be covered under the law of the state that you came from, and which originates the signal.
That prohibition only relates to the recording of the conversation, however. It does not apply if the phone line is simply open and someone else is listening in the conversation as the phone is out of sight in your pocket. Or if you keep a computer in your bedroom, and you use Skype. You can call in to the computer, which is allowed because you are not recording and then record what you hear going on in your bedroom. After all, you are a participate in the conversation and are giving your consent. The appliance repairman and your wife, however, have no idea that they are being recorded.
What is less clear, however, is the frequent use of the video and audio record function on most people’s cell phones. Few people are thinking about whether they are legally recording when they are pulling out their phones and videotaping every funny, or not so funny, thing that happens. ORS 165.540(1)(c) prohibits obtaining or attempting to obtain the whole or any part of a conversation by means of any device, if not all of the participants have not specifically been informed that their conversation is being obtained. There are significant exceptions to this rule, specifically that it does not apply to subscribers or members of their family or if it occurs in their own home; it does not apply to public or semipublic meetings, such as government hearings, trials, public speeches rallies and sporting or other events; it does not apply to regularly scheduled classes or educational activities in public or private institutions; and it does not apply to private meetings or conferences if all others involved knew or reasonably should have known that the recording was being made. What does that mean in the day and age of cell phone recordings? There is not any Oregon case law that interprets this statute, particularly in the very common use of recordings that are everywhere.
Going back to that first example: you record your son’s conversations on your home phone. Not a problem as to the legality. You record your son’s conversations on his cell phone. Probably permissible, assuming that some other jurisdiction’s laws do not apply. Following your son and video recording his interaction with the questionable quality person? Probably permissible if you are not able to hear their conversation. Once you come within range of being able to hear and record their conversation, it is no longer legal to be recording that conversation.
What about the video recording in the bedroom of your wife and the appliance repairman? It may violate laws against obtaining sexual images, but if you are not seeing sexual images, and only see the outline of bodies on the bed and hear the conversation, it is probably permissible. Does that still apply to the front steps of your house? That’s less clear as to whether that is still “in the home”, and there is recording of the conversation. Still pictures? That’s permissible because there is no conversation being obtained.
Recording your child’s conversation with his other parent? Permissible under the Wiretap laws, but there is probably a provision in your divorce judgment that prohibits you from monitoring or interfering with the conversation between a parent and a child. You could still be in hot water for contempt of court, just not criminally prosecuted.
There are certainly very appropriate times to bring out that cell phone and specifically inform the parties in a meeting that you are recording the meeting, such as a transition from one parent to another parent, when there have been many problems in the past, and the court needs to adjust the transition place or circumstances. If you specifically state that you are going to record the conversation, and the person continues to talk, there is implied consent by the act of going forward. It is not sufficient, however, to simply record the meeting openly. You have to specifically inform the person that their conversation is being recorded. The other person doesn’t need to give consent but must be specifically informed. There may also be appropriate circumstances, such as a parent teacher meeting with both parents present, if there has been a history of one parent being intimidating or threatening, so long as there is specifically information that there is a recording.
The idea of a private meeting or conference where you should reasonably expect that you will be recorded is likely to be an area that is going to be challenged. At this point, there is very little reasonable expectation of privacy when you are outside of your home. You are recorded when you enter the parking lot of your office, you are recorded when you buy your groceries, you are recorded when you are driving down the highway. You are aware that many many people are using their phones to record events that happen every day, maybe even recording you without your knowledge. However, a coincidental interaction does not constitute a meeting, where at this point you should have a reasonable expectation that there will not be a recording unless there is specific information given. Where is that fine line between a reasonable expectation of privacy unless there is specific information given and the increasing use of recording devices as a part of daily living? From a legal standpoint, it is still illegal to videotape conversations, even if it is so commonly done then posted on the Internet. If it is illegal behavior, even if everybody does it, there may be a possibility that you will be the one that is the test case for illegal recording, even if you believe it is for someone else’s own good, or to catch someone in the act. That’s simply not a risk worth taking.