Sometimes, I learn that conversations have happened, and one person in the conversation made a secret recording of it. The question I’m often asked next is, “Doesn’t this just blow the doors off of the other side’s case?” when the first question that should be asked instead is, “Did I commit a crime?” The answer to that question leads to a series of other questions. Then the next real question is “Can this record of the conversation be used in court?”
The answers to those questions, it turns out, are sometimes very complicated. Among the other factors involved are what state each of the parties to the conversation was in at the time it was recorded, whether the conversation was recorded in person or over some kind of electronic communication (and if so, what kind of electronic communication channel was used), what kind of notice was given, what the circumstances of the conversation were, sometimes what kind of information a reasonable person would have thought was going to be disclosed in the conversation. These are often not easy questions to answer.
I’m not going to attempt to provide my readers with a handy guide here, because I don’t think that can be done. If you’ve looked into this issue independently, you may find “handy lists” indicating that some states are “first-party” states and other states are “second-party” states and you could walk away from reading those websites and think you are in the clear. Please believe me, it is never going to be as simple as that.
Also, let me get this out of the way: whether or not it’s a crime to record a conversation secretly, whether or not that secretly-recorded conversation is usable in court, a lot of people will think it’s rude. Maybe you don’t care about being rude, which is your choice, but if you have done something rude to me, one of the consequences of that is that I’m going to be less likely to want to settle a dispute with you out of court.
When I record a conversation (which I sometimes do), I make it a point to be sure that everyone knows, right from the start, that it’s being recorded. If anyone objects to the recording, I stop recording. If anyone who was in the conversation asks me for a copy of the recording, I give it to them promptly, free of charge, unedited, and in exactly the same format that I use. I do not do this because of any legal obligation, I do it out of courtesy and respect.
Other people have different opinions about this issue. For instance, people who styled themselves “undercover journalists” working with an organization called Project Veritas desired to use surreptitious recordings of in-person interviews that they would conduct in Oregon.
Project Veritas has been pretty political in the past, and is criticized pretty heavily by certain people who are active in politics. Professionally, my own political opinions (and yours, and anyone’s) are almost always going to be irrelevant to the question of “what is the law and how does it apply to a given situation” so whatever your political opinions of this organization may be, try to set those aside and just focus on the law.
However, they feared application of a statute, ORS 165.540, which makes it a Class A misdemeanor to, among other things, “…Obtain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained.” So they filed a challenge to that law, alleging that it violates their First Amendment rights.
There are some significant exceptions to this in ORS 165.540, and the Project Veritas challenge only addressed this provision as to in-person conversations within the state of Oregon where the recording is made surreptitiously (that is, the recording device is concealed from the non-Veritas ) and includes audio (the rules may be different if the recording is video only), and the legal challenge Project Veritas brought addressed only whether the First Amendment to the United States Constitution trumps the Oregon statute.
But the punchline is, at least according to the Ninth Circuit Court of Appeals, no, the First Amendment doesn’t protect making surreptitious audio recordings of in-person conversations; so the State of Oregon can criminalize doing that. Class A misdemeanors in Oregon can be punished by fines of up to $6,250 per offense and up to 364 days in jail. Such a recording (made under circumstances that made it a crime) will very likely be deemed inadmissible by a court in a civil lawsuit.
Because you will surely wonder, the panel of eleven judges who decided the case split 9-2. The majority consisted of one judge appointed by President Clinton, two judges appointed by President Obama, one judge appointed by five judges appointed by President Biden, and one judge appointed by President Trump. The two judges on the panel who dissented, both regarding the kind of analysis to use to analyze the law and the outcome of that analysis, were both appointed by President Trump. (There are quite a few “Senior Judges” on the Ninth Circuit who hear cases on what might be called a part-time basis, but as it happens no Senior Judges were on this panel. Of the active full-time Circuit Judges, about two-thirds have been appointed within the last eight years by either Presidents Trump or Biden. Panels for each case are drawn at random by a computer.)
Now, it’s entirely possible this case will be reviewed by the U.S. Supreme Court, and if that happens, we might get a new result to this question sometime during the Court’s 2025-2026 Term. (U.S. Supreme Court terms typically run from the beginning of October to the end of June. But unless that happens, if you walk into a meeting in Oregon, and without telling everyone involved that you’re doing it, use a device to record that conversation, you are running a substantial risk that not only will that recording be inadmissible in court for any purpose, the act of making that recording may well be a crime.
So for that reason alone, please think carefully about making a secret recording of a conversation. Please think that it’s something that a lot of people will find morally offensive — think about how you would feel if someone did that to you. And then, please think about this: about half of the “secret recordings” that I hear turn out to have been made unnecessarily, because the other party is perfectly willing to testify that they said what the recording says they said, even if they have no idea any recording was made (because they don’t think they said anything wrongful, and that’s a different question than if what they did was actually wrongful). Of the ones that remain, any discrepancies are usually readily explained away due to memories fading over time, which is not the same thing as lying; and also there is the question of exactly how relevant those discrepancies are to the legal issues raised by someone’s claim.
It might happen on TV a lot, but in real life, I have yet to hear the secretly-made recording which proves that the other side is lying, at least about something that matters. I don’t ever want to have to tell one of my clients, “You probably committed a crime when you made this recording, and now we have to disclose that to the other side, which at minimum is going to make you look really bad, and is probably going to hurt your case. On top of all that, it isn’t going to do you any good that you made it, because it’s either probably inadmissible, and even if it is admissible, it may not be particularly powerful evidence because the other side is just going to admit what’s on the recording anyway when we ask them, because they don’t think they did anything wrong.”
So please think very carefully before you make a secret recording. The law about making that recording may be a lot less certain than you think; the risks of getting the law wrong are not minor; and the value of such a recording may well be less than you had hoped.