As easy as it is to record a conversation today, doing so is not always legal. It is crucial to understand how to comply with both state and federal recording laws to reduce your exposure to criminal and civil liability, and to ensure the admissibility of any recordings as evidence in court.
Oregon State Law
Oregon is generally a two-party consent state, meaning that all parties to a conversation need to consent to a recording of that conversation. However, there are a few important exceptions to this general rule. First, you do not need to obtain the consent of all parties when recording audio in a public place or gathering where people generally do not have a reasonable expectation of privacy, or where they know they are being recorded. Second, although it is illegal to eavesdrop on a phone call without any party’s consent, state law requires only one party to consent to recordings of phone calls or other electronic communications. Only in-person conversations require all parties’ consent in Oregon, subject to the public recording exception.
It is a misdemeanor under Oregon law to record a conversation without proper consent or to disclose an illegally recorded conversation. Violating this law can also open you to civil liability in the form of an award of damages and attorneys’ fees to injured parties.
Federal Law
Federal law only requires that one party consent to the recording of any conversation. Violating the federal recording law is a crime punishable by up to five years in prison and a fine of $250,000 for an individual. A person found guilty of illegal wiretapping under federal law may also be held liable in civil court for damages and attorneys’ fees.
Interstate Telephone Conversation
Phone calls often involve parties in different locations. Where a phone call involves parties from various states, determining which state law controls and who needs to consent to the recording is a complex exercise. When there is a conflict between the laws of two states, a court will decide which to apply. If parties in multiple states are involved, a court is likely to apply federal law.
When Is a Recorded Conversation Admissible as Evidence In A Lawsuit?
An illegally recorded conversation is unlikely to be admissible in an Oregon court. Moreover, even legally recorded conversations may not be admissible because of the hearsay rule.
The hearsay rule prohibits a statement made out-of-court from being used as evidence to prove the truth of that statement. For example, a legally recorded conversation between you and your neighbor in which your neighbor says, “I have stolen packages from our mailroom,” would not be generally admissible in court to prove that your neighbor stole packages. The recording may be admissible to prove that your neighbor made the statement, but not to prove that the statement is actually true. This can be a hard line to draw without the assistance of an experienced litigator.
There are also numerous exceptions to the hearsay rule that may allow a legally recorded conversation to be admitted as evidence, but illegally recorded conversations are less likely to be admissible under these exceptions.
Conclusion
The laws concerning recorded conversations are complex. If you are facing a dispute or have questions about these issues, consult an experienced attorney about how the law may impact your situation. Contact us to speak with a member of our team.
