The Basics of Colorado Recording Laws
The state of Colorado is a "one-party consent" state. Pursuant to Colorado Revised Statute § 18-9-303, it is unlawful to "knowingly use[] or caus[e] to be used a secret listening device for the purpose of overhearing or recording the private conversation of others without the consent of at least one party thereto." This statute is a criminal statute. However, as explained in Simkins v. District Ct., the one-party consent law can also be a civil tort. It is still an open question in Colorado whether a defendant can invoke the constitutional protection of the First Amendment in a civil case where he or she is accused of having illegally recorded a conversation .
Unsurprisingly, Colorado is in the minority of states that require at least one-party consent for audio recordings. Twenty-two states and Washington D.C. have adopted a "two-party consent" law – which requires the consent of all parties before audio recordings are permissible. The American Law Institute follows the same approach, as well as leading legal experts and the majority of states.
As for video recordings, Colorado Revised Statute § 18-9-504 prohibits the unauthorized use of an "imaging device" – defined as "a camera, video recorder, or any other device capable of transmitting images or video by electronic or other means" – to commit a criminal or invasive act.
Audio Recording Laws
Colorado, like many other states, has a one-party audio listening or recording law. However, even though it is a one-party law, Colorado’s law is very broad. This means that almost all recording in Colorado is legal, and therefore not grounds for tortious interferences with a business.
Colorado Revised Statute § 18-9-304 provides that a person commits a one-party listening or recording crime if:
- (1) The person, by means of any device, overhears, intercepts, or records the content of any wire, electronic, or oral communication; and
- (2) Such person does not have the consent of the emitting party to the communication; and
- (3) Such person does not receive or transmit the wire, electronic, or oral communication through an electronic, mechanical, or other device which is furnished by the utility or company or individual providing telephone service to such person for the purpose of intercepting the communication.
Essentially, all people involved in the conversation can consent to the recording before it occurs, and both parties can be asked to consent to the recording as its transpiring. Any conversation that is recorded without knowledge of one of the parties is not grounds for tortious interference with a business, therefore, it is legal and people cannot sue for the recording.
Video Recording Laws
The laws are a little more nuanced when it comes to video recording, and whether or not consent of the people being recorded is required before people can film each other with their phones or other devices. The application of the law hinges on whether a recording was made in a public or private place. Unlike most states, Colorado does not have a one-party consent rule that would permit the recording of any conversation by a party to that conversation. Instead, filming in public is legally permissible without the consent of others if the video does not include audio and is not otherwise proscribed by specific criminal laws.
In Colorado, there’s no expectation of privacy when people are interacting in a public space. Because of this, coloradans should expect to be filmed when they’re at theaters, sporting events, concerts, or similar locations with other people around. It’s customary and standard for venues, for example, to reveal that by attending events like movies, sports games, and concerts you grant permission for your image to be captured and to give permission for the public use of those images. Therefore, if somebody is at an event where a videographer captured their image on camera, that videotape and audio could likely be used for commercial purposes, such as for advertising, marketing, or in the news. Colorado courts have even found that capturing somebody’s image likely does not entail an invasion of privacy even if it goes viral online.
On the other hand, if the recording is being done in a private space and captures audio and visual images while employing sophisticated recording equipment designed to capture information captured only by the consent of the people being recorded, the law prohibits the recorder from broadcasting the resulting media to others; in essence, the law treats it like eavesdropping or spying on people in a physical space that’s private.
Recording Laws Exceptions
Orders issued by a law enforcement officer will always require that the law enforcement officer follow the same guidelines as if they were the property owner. However, in a few limited circumstances, a lack of a property owner’s consent may be excused by the Colorado courts, although those exceptions have not been specifically written into the statute.
The first example of this is that once consent is actually given, a property owner can’t take it back. This exception has been best illustrated during parental abuse cases in the past when children have placed hidden cameras around their house to catch their parents abusing them, which are used as evidence at a later date. The property owner parent or guardian cannot exclude the police from the recordings.
A second example of this exception arises when a police officer is pursuing someone who is suspected of committing a felony, at which time the crime takes precedence over the property rights of the owner. In much the same way as the hidden camera example above, the police officer is allowed to enter the property and the recording may be used as evidence for the prosecution.
The final example is during civil proceedings in which the property owner gives permission for recording to be used in that setting. An example of this would be in divorce cases or child custody proceedings where a recording is necessary as evidence.
Penalties for Unauthorized Recordings
Violating Colorado’s recording laws may expose individuals to civil and criminal liability, including imprisonment and substantial fines. The repercussions of surreptitiously recording private conversations may, in some instances, be life-altering.
The following are some of the most significant legal consequences and penalties for violating Colorado law: Federal law. The federal wiretap statute (Title 18, United States Code, Chapter 119) criminalizes recording phone conversations without the consent of at least one party to the conversation. This statute defines a "wire communication" as "any aural communication (1) made through the use of any instrument, device, or process which is capable of being used in the transmission of the human voice over a wire, cable, or other like connection (a) between or among points whether or not suited for the transmission of human voice; and (b) occurring on the facilities of a common carrier or which is carried by a radio communication system; (2) in which the parties to the communication have a reasonable expectation that such communications are not subject to interception under circumstances justifying such expectation." (Emphasis added.) Under this statute, the maximum penalty for illegal recording is five years in prison and/or a fine of up to $5000. A court must impose the likely maximum sentence when a defendant refuses to accept responsibility. However, if the defendant pleads guilty and cooperates with authorities, the court may suspend some or all of the penalties. Pleas are accepted only in court, not through informal conversations. Also, the judge must approve plea bargains . Under the same statute, it is also unlawful to intentionally disclose information that the person learned from illegal recording. But under the statute, it is not illegal to share information that the person learned from illegal recording if the information was obtained legally or the person obtained the information after having consented to the interception. State law. Colorado Revised Statute §18-9-304(1) makes it a crime to: Under Colorado law, recording a private conversation without the consent of one party (the person doing the recording) is a class 1 misdemeanor. This may result in up to 6 months in county jail and/or a fine of up to $500. A second conviction can result in up to 12 months in prison and/or a fine of up to $1000. Unlike federal law that requires the court to impose the likely maximum sentence and allows for plea bargains and for judges to suspend some or all of the penalties, the state statute is more lenient. It specifically states that a court "may sentence a person convicted of a violation of this section by granting him probation." Under Colorado law, the judge has discretion to suspend or grant probation even in serious felony cases. Probation can range from 12 to 24 months. The advantage of probation is that it avoids a jail or prison sentence. Ineligible for probation are persons convicted of a class 1 felony such as first-degree murder who are sentenced to life imprisonment or life imprisonment to be served without the possibility of parole. Colorado Revised Statute §18-9-305 makes it a class 1 misdemeanor for anyone who "knowingly permits" a person to illegally intercept a private oral communication.
Guidelines for Legitimate Recording Practices in Colorado
All parties consent; This is a pretty simple one. If all parties have consented to the recording, then you are probably safe in Colorado, as long as the law in the other state permits the recording. In this case, you only have to worry about that other state’s recording rules.
One party consent; The only time you are legally safe is if the party that did not consent is not a resident of Colorado or is using a phone not physically in Colorado (e.g. a mobile in New York, but the call is connected to a Colorado cell infrastructure). If either of those two conditions are met, then you run the risk of liability in Colorado. It is important to note that the unauthorized party can sue for an injunction, damages, and attorneys’ fees. In addition, there is also the risk that the Colorado department of regulatory agencies may bring a complaint against the issuer.
A best practice is to obtain all-party consent. The simplest way to obtain consent is to ask before making the recording. You can do this by sending an email, leaving a voicemail message, or sending a text message before calling the person. You will want to document the consent and "write" it down for liability purposes. A simple statement, whether in writing or vocally conveyed, will be sufficient. These consent statements work in the context of a recording: It is important to note that simply asking during the call, "I am recording this call for quality assurance. Is that ok?" is generally not considered adequate notice of recording under Colorado law. The better practice is to ask if the call can be recorded prior to beginning the call.
There is an exception to obtaining consent that requires a very minimal intrusion on the privacy of the target. If it is reasonable to believe that the target has no expectation of privacy while in a public place, such as a park, street, mall, or outdoor event, then you would not need to obtain consent to record, since the person is not in a location where he or she would expect their conversation to be kept private. This exception would also apply to video recording in a public place.
For example, consider if you were to see a public altercation in a mall and people approached the area to record the violence, they could argue that it was in the public interest to record the altercation. Reporters at the scene of news coverage of public demonstrations have been held to need no consent under these circumstances.
Unfortunately, being in a public place may not be enough; there is also the issue of intent. If someone is in public but has an express intent not to be recorded, such as "you better not film me!" or "you better not post that online!" there is a good chance you will need consent to record in Colorado.
Another exception would be in the instance of a government officer making an arrest. The United States Court of Appeals for the Tenth Circuit has held that since police officers on duty lack a reasonable expectation of privacy, if the officer is on the public street or sidewalk and has a publically accessible police badge and uniform, it would not be an unreasonable search and seizure to have a bystander audio or videotape the events, which does not require consent.
However, we recommend you err on the side of caution, and do not rely on this exception. We’d recommend keeping a log of every phone call or meeting you plan to record. You can also review your company’s policies surrounding recording, and include a mandatory training for employees to ensure compliance.
Under Colorado Rules of Professional Conduct, Rule 1.6 requires attorneys to maintain client confidences and secrets unless consent is granted, or disclosure is impliedly authorized to carry out the representation. The Consent Decree issued by the Colorado Supreme Court on April 10, 2018 triggered this Rule as it is now considered unprofessional conduct to record communications with clients to the extent that they breach confidentiality.
The Influence of Federal Regulations on State Recording Laws
The interaction of federal and state law can often create additional complexity for civilians and business owners, particularly when those laws govern such day to day matters as recording conversations. The federal law, namely the Wiretap Act found in Title 18 of the U.S. Code, governs over any conflict with state law such as Colorado’s recording law. This means that a party is free to record a conversation as long as they have consent from at least one person who is a party to the conversation, even if that recordation may end up being illegal under state law.
For example, if Person 1 calls Person 2 without the knowledge of Person 3, and then Person 1 gives Person 2 consent to record the call, then Person 1 has satisfied the minimum requirements of federal and Colorado law. However, if Person 1 later gives consent to Person 3 to record the call unbeknownst to Person 2, then the parties may have violated the Colorado recording statute if Person 2 had a reasonable expectation of privacy. Since the call was made without the actual or implied consent of Person 2, then the mere consent of Person 1 to record the call would not be enough to fall under the scope of the Colorado law, which requires the consent of all parties in a conversation.
This issue mainly affects those involved in interstate communications. As discussed above, when participants involve persons in more than one state, the communication could violate the laws in any of the states involved. When that’s the case, however, the Unified Carrier Registration Plan states that the law of the place where the facility is located comes into play. Therefore, in a situation where Person 2 and Person 3 are both residents of Colorado, and Person 1 is a resident of another state, any violation of the Colorado recording law would also violate the other state’s laws. So the question remains, what could happen when consent is not obtained from all parties in a conversation?
As discussed above, the general prohibition against recording could create liability for a person who has not obtained the consent of all involved parties. Both civil and criminal liability could be imposed for an illegal recordation, but only in civil suits is a consent defense recognized. For example, parties have been held liable under civil law for costs arising out of the creation of private nuisance, invasion of private affairs, breach of contract, tortious interference with a contract, unfair competition, and violation of civil liability statutes.
The federal Wiretap Act, itself, provides for civil liability, in the form of damages, attorney fees, and injunctive relief:
Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses, or uses…as prohibited by this chapter. . . .
Damages assessed in a suit brought under this section shall be calculated as provided in § 2520 (c)(2) of this chapter. In any such suit in which a person is found to have violated or willfully or maliciously interacted with the federal law, the Court, in its discretion, may assess as damages whatever amount the Court considers appropriate, but not less than the sum of —
(i) the greater of $100 a day for each day of violation (but not less than $10,000); or
(ii) liquidated damages computed, at the requesting party’s election, as the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person be awarded less than the sum of $10,000;
The defendant may not raise the defense that he or she had a good faith belief that he or she was acting in accordance with the law.
In addition, those who intentionally commit any illegal act prohibited by the federal recording laws face criminal liability. The penalties increase with repeated violations, so those who commit multiple violations face considerable jail time — up to five years for first time offenders and up to 10 years for repeated offenders.
Recent Amendments and Legal Precedents
Colorado recently saw significant updates to its recording system as a number of counties transitioned to web-based systems. While not legally required under Colorado law, the secret, general index made it increasingly difficult for interested parties to get critical information about records in a timely fashion. In an effort to mitigate the problems that resulted for those entitled to receive notice, the Colorado General Assembly passed House Bill 07-1141 which allowed County Clerks and Recorders (Clerks) to eliminate having to maintain a secret index, as long as certain requirements were satisfied. After a careful review of the requirements of House Bill 07-1141 (and its amendments), all parties agreed that removing the secret index would be beneficial for Plats and other documents by making the courthouse records more open .
Andrew Klein, the prime sponsor of House Bill 07-1141, stated that the bill "will create the most open, direct and secure system of recording in any state in the nation." Since the passage of the amendments House Bill 07-1141 in 2010, PUDs, HOAs and homeowners across Colorado have enjoyed the benefits of the new open, direct and secure system of recording. This access has allowed homeowners to check on the records which affect common areas or individual lot and condominium ownership to make sure that the HOA is meeting its statutory and fiduciary duties. HOAs and PUDs have enjoyed the benefits from greater transparency both in terms of having a more accessible place where they can review the indices for recorded documents and in being able to know the order in which their documents are received at the courthouse.