Oregon Bans Secret Recording of Conversations but Carves Out Police

The prohibition and the exception live in the same section, so both have to be read together. ORS 165.540(1)(c) makes it unlawful to obtain any part of a conversation by any device if not all participants are specifically informed that their conversation is being obtained. Note that Oregon's in-person rule is a notice rule, not a consent rule: the statute requires that participants be told, not that they agree. Telecommunications and radio communications are treated differently under ORS 165.540(1)(a), which requires the consent of only one participant, so an Oregon phone call and an Oregon face-to-face conversation are governed by opposite standards. ORS 165.535(1) defines "conversation" as the transmission between two or more persons of an oral communication that is not a telecommunication or radio communication, and it now expressly includes a communication occurring through a video conferencing program. Silent video is outside the section entirely, because the section reaches conversations rather than images.

The police carve-out entered ORS 165.540 through the 2015 session, and the section has been amended since by chapter 216, Oregon Laws 2019, chapter 357, Oregon Laws 2021, and chapter 234, Oregon Laws 2023. All four conditions in ORS 165.540(5)(b) must be met at once. The officer must be a participant in the conversation and be performing official duties. The recording must be made openly and in plain view of the participants, so a phone held out visibly qualifies and a device hidden in a pocket does not. The conversation must be audible to you by normal unaided hearing, which rules out a parabolic microphone or a long-range device picking up an exchange you could not otherwise hear. And you must be in a place where you lawfully may be. "Law enforcement officer" for this purpose takes the meaning given in ORS 133.726.

ORS 165.540(10) sets the boundary of the right. It states that the exception in subsection (5)(b) does not authorize the person recording the officer to engage in criminal trespass as described in ORS 164.243, 164.245, 164.255, 164.265 or 164.278, or to interfere with a peace officer as described in ORS 162.247. Two features of ORS 162.247 matter to a person filming: subsection (3)(a) disapplies the interference crime where the person is engaging in passive resistance, and subsection (3)(b) disapplies it to the act of informing another person of that person's civil or constitutional rights. Interfering with a peace officer is itself a Class A misdemeanor under ORS 162.247(2).

Several other exceptions in ORS 165.540 matter to anyone documenting public life in Oregon. Subsection (6)(a)(A) allows recording of public or semipublic meetings such as hearings before governmental or quasi-governmental bodies, trials, press conferences, public speeches, rallies and sporting or other events, so long as the recording device is unconcealed, which covers a protest or a city council hearing whether or not an officer is speaking. Subsection (5)(a) allows recording a conversation during a felony that endangers human life. Subsection (8) protects onward publication: the prohibitions on receiving and on divulging a conversation do not apply to a person who did not participate in initially obtaining it, if the conversation is regarding a matter of public concern, which is what lets a newsroom or a bystander publish footage someone else captured.

The statute also runs the other way, at the officer. ORS 165.540(5)(d)(A) and (B) exempt a uniformed officer displaying a badge who operates a vehicle-mounted camera or a body-worn camera, but the body-camera exemption falls away unless the officer has an opportunity to announce at the beginning of the interaction that the conversation is being obtained and the announcement can be made without jeopardy to any person and without unreasonably impairing a criminal investigation. ORS 41.910(1) then makes evidence intercepted in violation of ORS 165.540 inadmissible in any Oregon court, except as evidence of the unlawful interception itself or where body-camera footage was made in substantial or good-faith compliance with ORS 165.540(5)(d)(B).

635(1)(a) caps at a $6,250 fine. 540(1)(d) to obtaining one from another person while knowing or having good reason to believe it was unlawfully obtained. 910(1) separately bars the contents from being admitted in any court of this state, so an illegally made recording is worthless as evidence as well as criminal to have made. 247(4) forbids charging interference where the person is already charged for the same conduct. 540(5)(b) are litigated as elements, so whether the phone was in plain view and whether the audio was within normal unaided hearing are the facts that decide the case.