Colorado’s One Party Consent Statute
A conversation or a phone call with a friend or colleague where you record the dialogue is considered "communication" under Colorado state law.
The one-party consent rule applies to those who record communications provided that the communication is done by you and you are part of the communication at the same time.
The Colorado one-party consent law can be found in Colorado Revised Statute Section 18-9-303(1)(a) – (e) and states that:
An "oral communication" shall include any transfer of signs, signals, writing, images, sounds, data, information, or intelligence of any nature transmitted in whole or in part by electromagnetic, photoelectronic, or photomagnetic means. An "oral communication" does not include the following: Communication using a cell phone, an intercom system , or a public address system. A wired communication in which audio data is transmitted in accordance with a system protocol or standard to which the listener does not have access. A communication where the parties to the communication have the consent of the sender to receive the communication. This is also called "implied consent." An oral communication that occurs while the parties involved are in the same room. This does not include an oral communication that occurs by means of a cell phone or a device that sends communications via a wireless system.
Colorado law also allows third-parties to be able to legally overhear phone calls made in the state when using electronic devices. Basically, a person may not be arrested just for recording private conversation through these electronic devices. However, if the incidental overhearing of conversation (or eavesdropping) happens, it is not against the law provided that the parties to the communication must be able to overhear a message without special receiving equipment or instrumentation.
Exceptions to One Party Consent Rule
The following are a few exceptions to Colorado’s one-party consent law:
• Consent: Though Colorado is generally a one-party state, it does require that the recording party obtain the consent of all participants if the recording is for a non-news purpose, is done through a law enforcement agency, and the recording is done using Peace Officer Standard Profiler (POSP). Peace Officers are required to produce the recording within seven days of the recording.
• Law Enforcement Exception: Under the state constitution, law enforcement may record an intimate activity when executing a search warrant, at the scene of a crimes scene, or recording a crime in progress.
• Governmental Exception: Government officials and entities may be exempt from liability under the Federal Law Enforcement Amplification Act.
• Federal Law and Jurisdictional Exception: If a case has been brought into the jurisdiction of the United States for prosecution, federal law may apply. Federal law prohibits any person from intercepting a wire, oral, or electronic communication, unless through express consent or if an exception under the law applies. Title 18 U.S.C. sec 2511. Federal law requires that any person intending to use an interception of communications be declared as an operative of the FBI or another government agency for a case. The statute applies to both state law enforcement officers and private individuals.
What These Rules Mean for Businesses and Employers
For businesses with operations in Colorado, there are important issues to consider when it comes to recording communications. For example, to the extent that a company uses video cameras in the workplace, employees should be aware that audio monitoring is likely prohibited without express consent. Also, employers need to think through how they position and use cameras in the workplace to avoid consent issues under federal wiretap law and to avoid running afoul of other legal protections such as the federal Video Privacy Protection Act, which applies to all video recordings (even employee). In addition, companies using high-tech cameras in workplaces should consider whether use of such cameras violates state law rights of privacy and other protected rights.
Businesses should also consider internal policies on recording conversations. Companies may want to consider disclaimer language highlighting the fact that the workplace and communications are recorded, be it video or audio or both, or otherwise open to what the federal wiretap statute defines as "interception." Such internal policies are not binding on a court or other third parties, but can have a significant impact on limiting employees’ expectations of privacy in the workplace. These internal policies also may be useful in the event of a lawsuit where a party asserts an expectation of privacy in workplace communications. While policies and procedures do not eradicate the existence of contractual rights or interests in certain types of communications (whether workplace or otherwise), they can be very powerful evidence about general attitudes toward surveillance and can be helpful to a party who faces the intimidation of being surveilled by another party prior to a lawsuit.
Illegal Recordings: Penalties
Violating Colorado’s recording laws can have a number of legal consequences.
Depending on the specific circumstances of a case, an accused person can face:
In both civil and criminal cases, such penalties can lead to significant fines, jail time, and/or imprisonment.
Civil liability
Under Colorado Revised Statutes 13-21-120(1), if someone "records, uses, or discloses without authorization" the contents of a private conversation, they could be liable for:
This law, however, does not apply if the accused (a) was a party to the conversation, (b) had permission from at least one of the parties to the conversation, or (c) the recording was "by or by request of a law enforcement official and made in accordance with the provisions of the law permitting [court-approved interception]."
Criminal liability
Under Colorado Revised Statutes 18-9-305, it is considered a class 1 misdemeanor for someone to "see or hear a conversation and [to] use or divulge, disclose, or distribute the contents of a conversation" that he or she obtained through "a eavesdropping or wiretap. For the purposes of this law, the terms "eavesdropping" and "wiretapping" refer to the "unauthorized interception of a communication…that is not readily observable to the public."
If someone is convicted of a class 1 misdemeanor in Colorado, they could face a prison sentence of up to 18 months and/or a fine of up to $5,000.
Mix of civil and criminal liability
In addition to Colorado laws regarding recording conversations, federal laws also prohibit "interception" (using an electronic device to "acquire…any oral communication through the use of…an interception device") and "disclosure" (sharing information obtained through an interception device) (Title 18 US Code 2511). Violating these laws can result in "a fine under this title or imprisonment for not more than five years, or both…" (Title 18 US Code 2511(4)).
However, the law allows the following exemptions:
People accused violating this federal law must face a different standard regarding the knowledge that the conversation they are recording is being conducted over the phone. While the court must find that the person was aware that the conversation was "wire or electronic communication" under the federal law, that communication can still be considered a "wire communication" under Colorado law even if the accused was unaware that the communication was over a wire.
Tips for Recording Legally
Start by getting consent from the other person; if you are a private citizen (not law enforcement), then you can obtain the consent of either party to the conversation. For example, if you are the president and CEO of a corporation and you want to record a conversation between you and an employee, you do not need the employee’s consent to record the conversation in Colorado. But you can’t just record someone else’s voice "just to see what a person sounds like."
The law says you cannot "intercept" a telephone call unless you are taking part in the call or you have the consent of one of the parties to the call. The law also requires you to notify the person at the end of the recorded conversation that the conversation has been recorded — unless you have said you did not want the other person to receive that notification until later.
But even if you don’t have to get the consent of everyone involved in the conversation , it’s still a good idea to let them know they’re being recorded. Not all parties to the conversation may be aware of their rights.
"Practically speaking, not everyone is going to understand these rules, and unwitting violations are going to occur," says Kathy Jorrie, a partner in Davis Graham & Stubbs’ media and entertainment group and a past president of the Association of Media & Entertainment. "The best practice is to get consent."
Recording Laws Questions: FAQ
In Colorado, is it legal to record someone without them knowing? Colorado is a "one party consent" state under the Colorado Criminal Code section 18-9-304(1)(c). Therefore, as long as one party can hear the conversation and consents to it, it is legal. Consent may be implied, however, consent cannot be given if obtained by consent obtained through force, threat or strong persuasion. Also, just because you are able to secure consent, does not always mean you can record the call without risking violating another law (such as invasion of privacy). Does this apply to the use of recording devices in public? And if so, when is consent required? You are permitted to videotape in public spaces and private spaces that you have permission to enter. You should tread carefully with respect to non-verbal gathering of information. In the workplace for instance, this includes gathering information from employee social media accounts. You are not permitted to surreptitiously videotape employees, customers, etc.
Can I video tape in public spaces? Yes, so long as the taping does not violate a reasonable expectation of privacy. A reasonable expectation of privacy is an area where a person has a subjective expectation of privacy that society recognizes as objectively reasonable. For example, a video tape of an employee working at a desk in a cubical would not be deemed to be an invasion of privacy. However, video taping of an individual inside their home would be viewed as an invasion of privacy.
If I send someone an email, do they need to give me their consent to allow me to record them? No. In Colorado, there is no expectation of privacy in sending an email. When you send an email, you must presume that the use of it will be shared with others which can include that it will be added to a mailing list, or that it will be forwarded to others. Therefore, the person to whom you are sending the email does not have to consent to being recorded because there is no expectation of privacy.
Resources and Additional Reading
American Civil Liberties Union of Colorado
The ACLU of Colorado promotes all civil liberties, including the right of privacy.
Colorado Criminal Defense
If you’re facing criminal charges in Colorado, this site provides resources on definitions and penalties.
Colorado Criminal Legal Codes
State legal codes on wiretapping , eavesdropping and other criminal offenses.
Nolo Press: Colorado Information
Legal guide featuring up-to-date information on Colorado laws regarding consent, recordings, eavesdropping and more.
Free Speech Coalition: Speak Freely
This organization advocates for the rights of performers to create legal sex work. The Speak Freely section is dedicated to legal advocates and those concerned with content regulation.
