Colorado Recording Laws – An Overview
Before 1993, some states (including Colorado) allowed individuals to record phone conversations without consent, but in 1993, the state legislature updated the statute to require all parties to consent to any recording. C.R.S. 18-9-309.
Since 2001, Colorado law has allowed employees and employers to tape record calls regarding employment concerns, as long as one party to the communication consents to the recording. C.R.S. 8-2-127. The Colorado Supreme Court has held that the law only allows an employee to record a communication with a supervisor regarding a workplace job condition, not a conversation concerning non-work related areas of employee’s life. In sum , Colorado is a "one-party consent" state, which means that as long as one person in the conversation gives consent, it is legal to record the call or communication. But when the call a business-related matter (or a workplace matter), businesses should think carefully about the best practices in their jurisdiction. Employers should be free to record employee communications, but should consider whether it is appropriate under specific circumstances. Federal law generally is not going to be stricter than state law, but there are situations where it could be, so business will need to keep up with the evolving landscape.
Colorado’s One-Party Consent Rule
Colorado is a "one-party consent" state, meaning that the law permits an individual or entity to record a phone conversation as long as one of the participants in the call consents to the recording. Given this, you might think that under Colorado law you could record an allegation that it is being harassed by a customer or client – even if the client may not know that the other party may be a witness to the harassment that is being experienced. However, this is not necessarily permissible. For example, the law does not permit an individual to record an in-person conversation involving a client who has explicitly requested confidentiality or if the case involves issues of domestic violence or stalking. Under these circumstances, the employee should likely contact Legal or Human Resources (HR) before recording a conversation.
Under the one-party consent rule, you must be either a party to the conversation or have the consent of at least one of the parties to the recording. For example, if you overhear the conversation, you may be deemed to be part of the conversation and permission is not required. However, it has been held that if someone secretly attaches a recording device to a phone line that they are not entitled to, they will be guilty of tampering with the phone line.
From a business perspective, the one-party consent rule makes it clear that when conducting business through emails, texts, or phone calls, it is prudent to ask the person you are contacting if you can record the conversation, which goes a long way toward mitigating potential issues on both sides of the transaction.
Exceptions to the One-Party Rule
There are also exceptions to these one-party consent recording laws. For instance, recording may be done with the consent of all parties to the communication, or if the recording of the communication is done pursuant to a court order that meets certain requirements under Colorado law. Colorado law also prohibits the disclosure of communications obtained through improper recordings, unless allowed under the law, such as by the court-ordered exception or when the recording was made with the consent of all parties. The only other exception for use of an improperly made or used tape recording is in a trial (or other similar proceeding), if the evidence sought to be introduced is material or relevant to an issue in the case.
In addition, the statute does not make it illegal for a person who is not a government official to hand over information about conversations between an individual and a government agency, as long as this does not violate any other laws.
Another exception to the one-party consent rule is for those who work for law enforcement agencies. The Colorado Supreme Court has held that Colorado’s privacy statute does not apply to undercover law enforcement officers. In this case, the agent, while in this state on an undercover drug investigation, secretly taped a conversation. According to the Colorado Supreme Court the agent acted properly because she was gathering evidence of a crime.
Another exception under the Colorado statute allows the interception or recording of a conversation through a wiretapping device by common carriers or others who provide telephone, telegraph, cable or any other services to the public. However, the purpose of this exception is very narrow, to avoid interfering with the normal course of business. As such, the people involved will not be using recorded conversations for law enforcement purposes, but rather to provide correction and quality control.
Penalties for Unlawful Recording
Violating Colorado’s phone recording laws can have serious legal repercussions. Whether it is a civil or criminal penalty depends on the facts of the case.
If a government agency, interested party or other injured individual wants to sue someone for damages resulting from illegal phone recording, they can bring a civil lawsuit for such invasion of a person’s right to privacy. This is a civil suit filed in a local district court with jurisdiction over the venue where the illegal recording took place. This places considerable pressure on the person being sued. If the person being sued loses, he or she must not only pay their own attorney’s fees and litigation costs, but also the plaintiff’s attorney fees and litigation costs, plus damages and civil penalties. Though very unusual, if the damage award is very large, the court may award punitive damages (a form of punishment) against the person who engaged in illegal recording. Such damages are in large part awarded and determined by the court’s discretion, rather than any objective consideration. In any event, the civil penalties can be very substantial.
However, not all illegal recording results in a right to sue for damages. For example, even if a bank employee surreptitiously records conversations held during bank hours at the decision makers’ desks, the courts held these were not private communications and did not result in a claim for civil damages. Therefore, it is extremely sensitive to have very specific facts before any civil lawsuit is attempted, so the aggrieved party has an actual, reasonable chance of successfully recovering damages in a lawsuit.
Criminal Penalties A person engaged in illegal recording may be charged criminally with unlawful, illegal recording. This is a very minor, low-level class B misdemeanor and carries the possibility of up to six months in jail, a fine of up to $500 or both, plus the possibility of additional sanctions. These sanctions may include restitution, other restitution-related issues and payment of the attorney’s fees and costs incurred by the prosecutor. In most cases, however, illegal recording is charged as a class 1 misdemeanor, with a maximum penalty of up to 18 months in jail, a fine of up to $5,000 or both. In either case, the court may also assess other sanctions. Usually, the maximum jail term is reduced or replaced with probation. However, the possible financial consequences of both the civil and criminal penalties are very high.
Recording Conversations at Work and in Business Settings
Employers need to ensure their employees are aware of the law and act in accordance with it. To avoid issues with consent, employers should consider including a phone recording policy in their employee handbook. The policy can outline when an employee can record a call and remind employees that violations may result in disciplinary action up to and including termination.
Like the one-party consent rule, Colorado’s recording law is set out in its wiretap statute, which is a criminal law. This means that even if an employee breaks the law and personally records a conversation without other party’s consent, the employer may be able to legally terminate them for violating company policy .
Employers with open-office or call-center environments should give their employees confidentiality training during orientation, and companies that regularly record calls should make sure they have a clear policy about consent and employee accountability regarding recordings. Conversations where employees expect privacy could come as a rude surprise to them if they are recorded without their knowledge and consent.
Whether or not it’s legal for employers to record employees, there’s the matter of employee trust—if employees learn that their employers have been secretly recording them, it could have a negative effect on morale and trust.
Tips for Legally Recording a Conversation
In the context of general advice, if you are going to start recording your phone calls, make sure that you have policies and protocols in place to deal with any issues that may arise. In the event that you are subject to litigation, your call records could be admissible in a court proceeding and could be called into question. Have strategies in place to clarify when recordings should be kept confidential and backup call logs with proper content retention policies. If you have specific questions about keeping such records, consult with a lawyer.
If you intend to sell the recordings to a third party, there are additional consent requirements that may apply to you based on the nature of the business in which you are involved or by consumer protection regulations. Prior to offering recordings, you should work with an attorney to ensure compliance.
Recent Legal History and Court Cases
While incidents of illegally recorded phone conversations are rare, they do happen. Recent events surrounding celebrities and leaked private recordings have kept the issue front and center. In Colorado, courts have addressed the issue of phone recording through recent legal updates.
One case in 2014 involved plaintiff Gabriela Quintana-Trujillo who was recorded without her consent by her therapist who had a telephonic conversation with a third-party. The plaintiff sued the therapist for defamation and violation of the Colorado Lawful Records Statute and achieved a ruling on the statute which clarified that plaintiffs may recover compensatory damages for mental anguish and emotional distress.
Colorado Revised Statutes 13-1-127 (2019) defines the Colorado Lawful Records Statute states, "2) (a) damages recoverable for a violation of this section include: (I) An amount not to exceed one thousand dollars; and (II) If necessary, an amount sufficient to fully compensate the injured party for any special damages; and (b) In the case of proof of damages for mental anguish or emotional distress, a court may award an amount of damages, other than the amount specified in subsection (2)(a)(I) of this section, to fully compensate the injured party for the mental anguish or emotional distress . "
Also in 2014, the Colorado Supreme Court addressed the definitions of "intercept" and "oral communication" and ruled, "we conclude that the district court erred: (1) in holding that the recordings of the defendant’s conversations with Black and Torres were not subject to suppression under the interception provisions of title 18, articles 15.5 (part 1); (2) in holding that the recorded communications with defendants Smith and Michener were subject to suppression in their entirety because the other defendants did not have a valid wiretap warrant; (3) in suppressing the recordings of the defendant’s conversations with Black and Torres in front of Miller; and (4) in holding that all evidence obtained pursuant to a search of the Moncayo residence was subject to suppression." Colorado v. Moncayo, No. 09SC203, 2014 CO 25 (Colo. 2014)