Secretly Tape Recording Conversations in Colorado

by Colorado Criminal Defense Lawyer for the Defense of Colorado Communication Crimes – H. Michael Steinberg

The following is a very brief analysis of the bugging and recording law in Colorado

Recording or intercepting a telephone conversation, or any electronic communication, without the consent of at least one party to the conversation is a felony punishable by a fine of between $1,000 and $100,000 and one year to 18 months in jail. Colo. Rev. Stat. § 18-9-303. Recording a communication from a cordless telephone, however, is a misdemeanor. Colo. Rev. Stat. § 18-1.3-401. Using or disclosing information obtained through illegal wiretapping is a felony, if there is reason to know the information was obtained illegally. Colo. Rev. Stat § 18-9-304.

However, nothing in these statutes “shall be interpreted to prevent a news agency, or an employee thereof, from using the accepted tools and equipment of that news medium in the course of reporting or investigating a public and newsworthy event.” Colo. Rev. Stat. § 18-9-305.

Additionally, a person may use wiretapping or eavesdropping devices on his own premises for security or business purposes, if reasonable notice of the use of such devices is given to the public. Colo. Rev. Stat. § 18-9-305.

Part 3. Offenses Involving Communications Current through Chapter 430, Second Regular Session 2010

1. Any person not a sender or intended receiver of a telephone or telegraph communication commits wiretapping if he:
   1. Knowingly overhears, reads, takes, copies, or records a telephone, telegraph, or electronic communication without the consent of either a sender or a receiver thereof or attempts to do so; or
   2. Intentionally overhears, reads, takes, copies, or records a telephone, telegraph, or electronic communication for the purpose of committing or aiding or abetting the commission of an unlawful act; or
   3. Knowingly uses for any purpose or discloses to any person the contents of any such communication, or attempts to do so, while knowing or having reason to know the information was obtained in violation of this section; or
   4. Knowingly taps or makes any connection with any telephone or telegraph line, wire, cable, or instrument belonging to another or with any electronic, mechanical, or other device belonging to another or installs any device whether connected or not which permits the interception of messages; or
   5. Knowingly uses any apparatus to unlawfully do, or cause to be done, any act prohibited by this section or aids, authorizes, agrees with, employs, permits, or intentionally conspires with any person to violate the provisions of this section.
2. Wiretapping is a class 6 felony; except that, if the wiretapping involves a cordless telephone, it is a class 1 misdemeanor.

Section 16-15-102 (10) inapplicable. Since § 18-9-304 and this section do not prohibit or make unlawful consensual recorded eavesdropping, where one party to the conversation agrees to the recording, there is no “unlawful interception” within the meaning of § 16-15-102 (10). That section is, therefore, not applicable, and the evidence should not be suppressed. People v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975), cert. denied, 423 U.S. 1053, 96 S. Ct. 783, 46 L. Ed.2d 642 (1976).

And monitoring conversations between husband and wife in jail not wiretapping. Monitoring the conversations between a husband and wife in the visiting room of a jail is not wiretapping because such conversations are not within the statutory definition of “wire communication”. People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).

We used to call this practice “bugging,” otherwise known as wiretapping. This means placing a device on a phone that allows another – not a party to the conversation – to eavesdrop on a conversation or other transmission.

Bugging by a private party is considered illegal almost all of the time for two reasons primarily: First, it allows someone to listen to a private conversation between two or more unsuspecting parties.

Second, bugs are usually placed without permission so you have a number of infractions inherent in such trespass-like activity. If you suspect someone has placed a bug on your phone or other device, you should call the police.

In the case of a telephone or in-person conversation, recording simply means making a copy of the conversation between two or more people. Recording is illegal in Colorado if NO party to the conversation knows that the conversation is being recorded. However, in Colorado, and this varies by state, if one party to the conversation knows that the conversation is being recorded, it is not illegal. Therefore, if someone tape records a phone call or conversation involving him/herself and another person, even one who is unaware of being recorded, that’s legal in Colorado.

If the same person taps into a phone line and records a conversation between two people who are unaware they are being recorded, it is ILLEGAL. Colorado and Federal law are similar in this respect; however, recording conversations may be illegal in certain other states unless all parties know of the recording and consent. There may be some cross-jurisdictional issues involved when tape recording a conversation across state or national boundaries.

If you intend to record a private conversation you should research the law in your state.