“Unlawfully Obtaining the Contents of a Communication”

This post examines a recent decision from the Oregon Court of Appeals in which the court addressed a man’s appeal from his conviction for “unlawfully obtaining the contents of a communication”. State v. Neff, __ P.3d __, 2011 WL 5067110 (Oregon Court of Appeals 2011).

This, according to the opinion of the judge who presided over the trial in the case, is how it arose:

`On November 4, 2008, [Shane Michael Neff] was pulled over by Officer Ou of the Eugene Police Department . . . [.] Officer Ou informed [Neff] that the encounter was being recorded. However, unbeknownst to Officer Ou, [Neff] was also recording the encounter by holding a recording device near the inside of the driver's car door but underneath the window, where the recording device was concealed.

[Neff] never informed the Officer that he was recording the encounter. When Officer Ou later realized that [Neff] was recording the proceeding, [he] was arrested and charged with obtaining contents of communication under Oregon Revised Statutes § 165.540(1)(c).’

State v. Neff, supra.

Neff’s brief on appeal gives a little more detail on what actually happened:

On November 4, 2008 Officer Ou of Eugene Police Department stopped [Neff’s] car, in which [Neff] was the driver and a passenger was in the front seat. . . . The stop occurred because [Neff] had recently purchased his car, which apparently had previously been owned by a person with a suspended driver's license. . . .

Upon encountering [Neff] at the driver's window, Officer Ou informed him that the encounter was being recorded. . . . Later, during the encounter, the officer noticed that [Neff] was also recording the encounter on his cell phone. . . . [Neff] had not notified the officer that he, too. was making a recording.

Appellant’s Opening Brief, State v. Neff, 2010 WL 6363271. The prosecution’s brief on appeal notes that Neff recorded “the encounter by holding a recording device near the inside of the driver's car door but underneath the window, where the recording device was concealed.” Respondent’s Answering Brief, State v. Neff, 2010 WL 6363272.

Neff “was convicted after a bench trial” and, as noted above, appealed his conviction to the Court of Appeals. State v. Neff, supra.

The statute under which he was convicted, Oregon Revised Statutes § 165.540(1)(c) provides, in pertinent part, that "except as otherwise provided" in Oregon Revised Statutes §§ 133.724, 133.726 and/or 165.540(2)-(7), “a person may not . . . [o]btain or attempt to obtain the whole or any part of a conversation by means of any device, . . . whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained.” In order to be convicted, then, Neff had to have recorded his conversation with Officer Ou without putting Ou on notice that it was being recorded.

Notice was the key issue at trial. Neff argued that

`notice is notice and the statute does not require specific people to give the notice. This conversation was being recorded because specific warning had been given, and the simple fact that it was being recorded twice, I don't see that the statute requires further notification.’

State v. Neff, supra. He also argued that `

there is no secret that it was being not only recorded in audio, but also in video. I suggest that to interpret the statute to require that the defendant also say, ‘this conversation is being recorded,’ serves no purpose.’

State v. Neff, supra.

The prosecution, on the other hand, argued that

the `legislative intent is to prohibit surreptitious tape recording and that is what was going on here. The defendant never informed Officer Ou that he was obtaining their conversation, and that's in clear violation of the statute without giving it a twisted or tortured reading.’

State v. Neff, supra.

The trial judge’s opinion explained why he found Neff guilty of violating the statute:

`The legislature clearly intended to require persons recording the conversations of others to give an unequivocal warning to that effect. . . . A person who records a conversation controls what is being recorded; they control when the recording begins and ends. If another person is secretly recording the same conversation, that individual does not necessarily begin and end the recording at the same time.

Therefore, portions of the conversation may be recorded without the knowledge of the party providing the notice. This lack of notice could only be cured by a separate notice given by the party making the recording.

Accordingly, to comply with the legislative intent of full disclosure, this court finds that the defendant should have specifically informed Officer Ou that he was also recording the conversation and may not rely on the Officer's notice of recording.’

State v. Neff, supra.

On appeal, Neff argued that the statute “does not require multiple warnings when people record a single event, nor does it require multiple warnings when multiple devices are used.” State v. Neff, supra. He also argued that (i) Ou’s “act of announcing that the encounter was being recorded was sufficient notice for all involved, including Ou himself” and/or that (ii) “adopting the state's” argument that “every participant in a conversation must be separately informed a recording is being made” would “not only be `unwieldy’ but would also render Ou's actions illegal because Ou only informed” Neff, and not his passenger, “that the encounter was being recorded.” State v. Neff, supra.

The prosecution claimed Ou’s statement that the encounter was being recorded

was insufficient because `specific notice regarding one recording being made does not necessarily provide specific notice regarding another recording.’ For instance, the state posits, different recordings can capture different sounds and may start and stop at different points.

Notice of the identity of the person obtaining the conversation is critical, the state reasons, to allow “the participants to make informed choices about their participation in the conversation, based upon both the fact that the conversation is being recorded, and on who is recording it.’

State v. Neff, supra.

In deciding who was right, the Court of Appeals reviewed the text of the statute and case law interpreting it, but found that neither “conclusively resolve[d]” the “tension” between the two parties’ “competing constructions” of Oregon Revised Statutes § 165.540(1)(c). State v. Neff, supra. The court therefore found it necessary “to consider applicable maxims of statutory construction”, one of which is that “`where no legislative history exists, the court will attempt to determine how the legislature would have intended the statute to be applied had it considered the issue.’” State v. Neff, supra (quoting Portland General Electric Co. v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (Oregon Court of Appeals 1993)).

After applying that maxim, a majority of the Court of Appeals found that

it is apparent that the legislature's concern in enacting subsection (1)(c) was to protect participants from having their conversations recorded without being informed that that was occurring. Consistently with that concern, we conclude that the legislature would not have intended Oregon Revised Statutes § 165.540(1)(c) to criminalize [Neff’s] conduct in this case because, here, it is uncontested that Officer Ou knew that the same conversation was being recorded: Ou himself was recording it. That [Neff] also recorded the conversation with his own device is immaterial.

State v. Neff, supra.

The majority disagreed with the dissenting judges, one of whom was Judge Haselton. State v. Neff, supra. Haselton concluded that

`[e]ach act of ‘obtaining’ is not culpable per se. Rather, a person is culpable under Oregon Revised Statutes § 165.540(1)(c) only if he or she “[o]btain[s] or attempt [s] to obtain’ the conversation and ‘not all participants in the conversation are specifically informed that their conversation is being obtained.”’ (Emphasis added.) . . .

`The referent for “is being obtained” as used in that final phrase of subsection (1)(c) is “[o]btain” as used in the first phrase. That is, “is being obtained” for purposes of the requisite notice (or lack of notice) connotes, unambiguously, each, separate act of “obtaining.”

Thus, if an individual obtains (or attempts to obtain) a conversation and each participant is not ‘specifically informed’ of that separate act of obtaining, that person violates Oregon Revised Statutes § 165.540(1)(c) .That is so regardless of whether all participants have been informed that some other individual is obtaining the conversation.’

State v. Neff, supra (quoting the dissent).

The majority was “unconvinced by Judge Haselton’s premise,” which it found was at least implicitly concerned with “monologues and eavesdropping” and therefore had

nothing to do with the problem at hand, which involves a specific antecedent notification that a conversation . . . was being obtained by one of the participants. The state proffers no explanation, and we perceive none, why a participant in a conversation who has specifically informed the other participants that he or she is obtaining a record of the conversation would have a legitimate motive to change his or her mind about participating in the conversation merely because another participant also is obtaining a record of the same conversation.

State v. Neff, supra.

The majority explained that “a different set of hypotheticals” illustrated the “troubling implications” of the dissent’s and the prosecution’s construction of the statute”:

Suppose a conference room is fitted with an automated, voice-activated recording device that is not visible to anyone in the room. However, there is a large sign in the room which reads: `Warning: Your Conversation is Being Obtained.’ If X and Y enter the room and see the sign, the [dissent’s] and state's construction compels the conclusion that neither X nor Y has been specifically informed that their conversation is being obtained because the sign does not disclose the identity of the person obtaining the conversation.

It follows, under the [dissent’s] and state's construction that, despite the sign's warning, the person who obtained the conversation is guilty of a crime. Moreover, under that construction, if a third person, Q, enters the room at the same time as X and Y and obtains their conversation with a cell phone, Q will have violated § 165.540(1)(c) despite the fact that X and Y have both seen the sign.

In our view, both of those outcomes are inconsistent with the legislature's apparent primary concern in enacting § 165.540(1)(c), because the sign in the conference room ensures that the participants in the conversation have been informed that their conversation is being obtained.

State v. Neff, supra.

The majority therefore held that the trial judge erred in denying Neff’s motion for acquittal because Ou's “act of informing [Neff] that their conversation was being recorded was sufficient to satisfy the requirement of Oregon Revised Statutes § 165.540(1)(c) that all participants to the conversation be `specifically informed’ that the conversation was being obtained.” State v. Neff, supra. So it reversed his conviction. State v. Neff, supra.