Oklahoma Audio Recording Laws
Oklahoma is a one-party consent state based on established precedent. Consequently, as long as one party of the conversation provided consent, other parties may record communications.
The Oklahoma Recording Privacy Act (ORPA) is set forth at 13 O.S. § 176.3. et seq. and provides in pertinent part:
"14. "Telephone call recording device" means any equipment used to record a telephone call by a person other than the person originating the telephone call, which telephone call is not made in person and does not occur on a telephone line in which the person participating in the communication originating the telephone call and the person participating in the communication receiving the telephone call are both present."
ORPA also establishes a civil cause of action. Section 176.4 § B provides:
"A. Any person whose oral or electronic communication has been intercepted, recorded, obtained or retained in violation of the provisions of Section 176.5 of this title shall have a civil cause of action against any person who has committed a violation of the provisions of Section 176.5 of this title. In addition to other relief to which the aggrieved party may be entitled, the court shall award the aggrieved party the greater of: 1. Liquidated damages computed at the rate of $100 . 00 per day for each day of violation of Section 176.5 of this title; or 2. Actual damages sustained by the individual aggrieved party. The conduct prohibited by this act is unlawful for all purposes under Oklahoma law, including but not limited to, the inadmissibility of any statements obtained in violation of this act."
In addition, recordings that meet the definition of "wire communication" (i.e., an electronic communication) are afforded the same protection under federal law. 18 U.S.C. § 2511(1)
(a) Except as otherwise specifically provided in this chapter any person who
(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
…
shall be punished as provided in subsection (4).
18 U.S.C. § 2511(2)(d) defines "oral communication" as:
"(2) "oral communication" means any oral communication except where such communication is:
…
(B) intercepted, under circumstances in which a person has exhibited a subjective expectation that such communication will be
…
Many of the analytical issues set forth in the Circuit Courts for federal cases do not apply. ORPA deals with communications from one party to another in situations where only one party has knowledge of the recording.
One-Party Consent Vs. Two-Party Consent
The difference between One Party and Two Party Consent in Oklahoma is relatively simple. Some states in the United States require that all parties consent to a recording or interception of a communication. Other states – like Oklahoma – only require that one party give permission. This is referred to as one-party consent. This allows a person to record a communication as long as they are a party to the communication. In other words, if you are recording a conversation you are having with someone, since you are participating in it, generally speaking you do not need to obtain the permission from the other party.
Where things can get tricky is when you are recording a conversation that you are not a part of. If you are eavesdropping on a conversation and then record your interception, you may have violated Oklahoma law. While this is not a criminal violation, it is important to note. That is, the law in Oklahoma allows a private civil cause of action so you could be sued by the person whose conversation you intercepted and recorded illegally.
Rarely, if there ever can be, a time when a party involved in a recorded communication does not know that a communication is being electronically recorded or intercepted.
Oklahoma’s Recording Law Exceptions
There are a few exceptions in Oklahoma to the "one-party" consent rule for recordation. For example, when law enforcement officials are involved, it is common for them to conduct secret recordings as a part of any ongoing criminal investigation. In such circumstances, it is always prudent to obtain a warrant or a judge’s permission for the search and seizure under the Fourth Amendment and any state law. This includes recording any face-to-face conversations involving the named party or any witness. Even justified law enforcement recording by law enforcement officers may, however, be subject to challenge by the target of the investigation if the officer did not obtain a warrant or some lesser form of consent or authorization. In any instance where a warrant is not obtained, the exception (provided under some evidentiary rule or statute) for law enforcement is that only an officer is permitted to record without obtaining consent.
Recording in public, by either an officer or some other citizen of Oklahoma, raises different issues. For example, police roadblocks are now fairly common in the Sooner State, but that does not necessarily mean that covert recordings are legal. Rather, Oklahoma public place laws do acknowledge the right of citizens to record one another without interference or difficulty—as long as the recording occurs in places open to the general public. Thus, the State of Oklahoma cannot prevent public discussion, debate, and disagreement over issues, and nor could it restrict the distribution of written material or recordings made at a public gathering. The distinction to keep in mind, however, is that in public places, the State may restrict your right to videotape an officer’s conduct if that videotaping of such conduct disrupts or otherwise tensions the operations of the public agency. With that said, any statute that impedes first amendment rights (freedom of speech) must be precisely drafted and narrowly construed or restricted to a legitimate or compelling State purpose. As such, neither the First Amendment nor the Oklahoma recording statute permit blanket prohibitions on videotaping in public places by citizens of that State.
Impact of Violations for Individuals and Companies
Before recording a conversation, individuals in Oklahoma must first determine if doing so will expose them to liability under Oklahoma state law. If at least one party to the call is located in a jurisdiction that is not a "two-party consent" state, the risk of liability may be mitigated, but individuals and businesses should consult with legal counsel for specific guidance in these circumstances.
Assuming there is some risk of liability, there are a number of legal considerations that should be made to mitigate any potential or actual legal issues. Many companies elect to inform all employees that any communication by phone, email, video conference or via social media is being recorded or monitored.
If an individual or business opt to include a disclaimer in all email communications regarding the recording of conversations, it should also establish procedures and protocols for any employees involved in these communications. For example, if a business owner has an employee who responds to email requests in a way that could be deemed harassing or abusive, the business may be able to place the blame for the corresponding recordings on that employee .
If, however, the business has no policy requiring email to be professional, or if that employee simply follows a common practice at that business where other employees answer emails in a harassing or abusive manner, the recording is likely to be attributed to that business. Therefore, it is best practice for an employer to require all employees to adhere to professional email practices.
For calls that are recorded, but not obtained from public sources, Oklahoma law defines a civil cause of action for the unlawful interception of communications. However, if the call is recorded by one of the parties to the call, the claim does not apply. It is unclear if this type of recording amounts to conduct that is subject to civil liability.
For commercial entities, it is advisable to choose a solution that includes all employees in the same program with the same protocols. This will allow a standard set of protocols to be followed by all employees while also ensuring that all employees consent to participation in the program, which may mitigate liability that results from an employee’s participation in the recording process.
Consequences of Unlawful Recording
The potential legal ramifications for recording a conversation without the consent of the parties involved are serious. In addition to facing forced destruction of the call or text, and penalties like bankruptcy, you can also face fines or incarceration.
The Oklahoma statute on this matter is upheld by the court system, and the matters are generally handled in criminal court. For recording a conversation unlikely to have consent from other people, the usual situation is a misdemeanor charge. The punishment for a misdemeanor conviction can range from just a fine to as much as $500 and potentially up to one year in prison. The courts will typically throw the book at you when it comes to recording without consent, so it’s important to be aware of the full potential consequences before you attempt to pass off any potentially harmful recording that you’ve used to investigate someone. Obviously, the most significant risk of penalties comes when you record a conversation knowing that the other parties do not consent to the recording. It is far less clear whether the Oklahoma statute applies to recording a conversation that you are participating in only, without the knowledge of the other parties. It is called "eavesdropping" under the Oklahoma statutes and could be punishable under the same law—it may be worth contacting eavesdropping lawyers before you consider using your own recordings for legal purposes.
Recent Cases and Updates
The latest Oklahom laws state that this is a one-party consent state. However, the ability to legally record phone conversations has been subject to challenges in the courts. For example, in State v. Webb, 2013 OK CR 22 (Okla. Crim. App. 2013), the Oklahoma Court of Criminal Appeals affirmed a trial court’s decision to suppress evidence gathered from the defendant’s recorded phone calls with his mother while he was still on parole.
Another area of ongoing litigation involves whether wiretaps , like the one at issue in State v. McDonald, 2017 OK CR 17, are permissible if an individual or law enforcement officials are not physically present when a defendant is being questioned.
Some legal analysts have theorized that the proliferation of phones and other recording technology in the personal devices of average Americans will continue to place pressure on existing laws regarding what kinds of recordings fall under lawful consent.