9th Circuit upholds Oregon’s conversational privacy statute


1/13/25 — Ninth Circuit Upholds Oregon’s Conversational Privacy Statute – Notice Required to Record In-Person Conversations
By Andrew Schpak & Missy Oakley
Barran Liebman Law,

January 13, 2025 — Last week, the Ninth Circuit Court of Appeals upheld Oregon’s conversational privacy statute en banc after it was previously thrown out by a divided three-judge panel. The statute at issue requires notice be given before an oral conversation may be recorded.

The lawsuit was brought by Project Veritas, a nonprofit media organization that engages in undercover journalism. Oregon’s statute prevented Project Veritas from conducting undercover investigations in Oregon (that involved recording in-person conversations without the interviewee’s knowledge). The Ninth Circuit held that Oregon’s statute is content-neutral and passes First Amendment scrutiny despite the three-judge panel having narrowly decided that the statute was unconstitutional.

In-Person v. Telephone Conversations

Oregon’s conversational privacy statute – ORS § 165.540 – contains several provisions. Project Veritas only challenged the constitutionality of Section (1)(c) that applies to in-person conversations. This provision requires all participants be informed that their conversation is being recorded.

There is a separate provision in the statute that applies to telephone and radio communications to which the person is not a participant. For these communications, the statute requires at least one participant to consent to the recording. ORS § 165.540(1)(a). (If one party to a telephone conversation is recording it, that is deemed sufficient regardless of whether the other parties to the conversation are aware that it is being recorded.)

It is important to note that Oregon’s statute contains several exclusions. Many of these relate to law enforcement but not all. For example, there is an exclusion for in-person conversations if the person uses an unconcealed recording device or if the communications occur through a video conferencing program. ORS § 165.540(6)(a).

Audio v. Video Recording

Oregon’s statute only prohibits audio recordings of oral conversations. This includes any audio-only recording or the audio portion of any audiovisual (or video) recording. The statute does not address video-only recordings. In Oregon, video-only surveillance is permitted in the workplace in areas where employees should not have an expectation of privacy. The best way for an employer to effectively communicate and demonstrate a lack of expectation of privacy in a specific workspace is through a combination of written policy language, training, and signage.

What Does This Mean for Employers?

Oregon’s conversational privacy statute remains in effect for the time being, meaning that notice must be given before oral conversations can be recorded in-person. This rule will likely change once again if the United States Supreme Court decides to hear the appeal. However, for now, this case serves as a reminder for Oregon employers of their obligations regarding audio recordings in the workplace and an opportunity to review current practices regarding video and audio monitoring or recording of company property and its surroundings.

For any questions, contact Andrew Schpak at 503-276-2156 or [email protected] or Missy Oakley at 503-276-2122 or [email protected].


Disclaimer: Articles featured on Oregon Report are the creation, responsibility and opinion of the authoring individual or organization which is featured at the top of every article.