§ 18-9-302 CRS and § 18-9-303 – Colorado Wiretapping & Eavesdropping Laws

Under CRS § 18-9-303, Colorado law prohibits certain forms of eavesdropping or wiretapping. Specifically, wiretapping a phone line, or using an electronic device to listen in on (or record) private conversations, are criminal offenses punishable by up to 120 days in jail and up to $750 in fines.

Wiretapping, eavesdropping, and the possession of illegal surveillance equipment can result in misdemeanor charges.

In this article, our Denver Colorado criminal defense lawyers will address:

• 1. What is wiretapping?
• 2. What is eavesdropping?
• 3. What are the penalties?
• 4. What are the best defenses?
• 5. Related Offenses

In Colorado, the electronic interception of a private phone conversation is a criminal offense.

1. What is wiretapping?

Wiretapping involves listening to or recording telephone conversations or electronic communication without the consent of either the sender or receiver. This makes Colorado a one-party consent state. (In two-party consent states such as California, a person would need the permission of both the sender or receiver on the phone call to lawfully record conversations.) Any person commits wiretapping if he or she:

• Knowingly overhears, reads, takes, copies or records a telephone or electronic communication without the consent of either sender or receiver;
• Listening, reading, or recording an electronic communication for the purpose of committing a crime; or
• Using or disclosing the contents of any wiretapped conversation.¹

It is also illegal wiretapping to attempt to listen in on phone conversations or help another person to commit wiretapping.

It is a separate criminal offense for anyone to

• manufacture,
• buy,
• sell, or
• possess any instrument or device used for wiretapping or eavesdropping.²

2. What is eavesdropping?

Eavesdropping involves listening to or recording a conversation without consent and while hiding. Wiretapping involves listening to people through the phone or using electronic communication. Eavesdropping can occur when two or more people are having (what they assume to be) a private conversation.

Any person not visibly present during a conversation commits eavesdropping if he or she:

• Knowingly overhears or records a conversation without the consent of at least one of the principal parties (as discussed above, Colorado is a one-party consent state);
• Intentionally overhears or records a conversation for the purpose of committing an unlawful act;
• Knowingly uses or discloses the contents of any eavesdropping conversation; or
• Aids, authorizes, agrees with, or permits any person to commit eavesdropping.

Many people unknowingly commit the crime of wiretapping or eavesdropping. Let’s say Gerard suspects his partner Debbie is having an affair. Gerard puts a recording device on Debbie’s phone to monitor her phone conversations. Gerard also hides outside Debbie’s house so he can overhear her conversations on her mobile phone.

After a couple of weeks of listening to her conversations, Gerard realizes Debbie is not having an affair, and gets rid of the recording device. Even if Gerard does not use the information he overheard, he may still be guilty of criminal wiretapping and eavesdropping.³

Criminal eavesdropping in Colorado is a class 2 misdemeanor.

3. What are the penalties?

Manufacturing, buying, selling, or possessing any instrument or device for wiretapping or eavesdropping is a petty offense. The penalties are

• up to $300 and/or
• up to 10 days in jail.

Wiretapping in Colorado is a class 2 misdemeanor, with penalties including

• up to 120 days in jail and/or
• a fine of up to $750.

Eavesdropping in Colorado is also a class 2 misdemeanor, with penalties including

• up to 120 days in jail and/or
• a fine of up to $750.⁴

4. What are the best defenses?

There are several exceptions to wiretapping and eavesdropping criminal charges. These exceptions can provide an affirmative defense to criminal charges of wiretapping or eavesdropping. This includes exceptions for:

• News agencies using standard equipment for reporting or investigating a public or newsworthy event;
• Using recording equipment on your own property for security or business purposes if notice is given;
• State or federal communications services, including necessary communications services, maintenance, or operations;
• Communications made through a system that is readily accessible to the public;
• Intercepting radio communications for use by the general public; or
• Communications on an authorized frequency within the bands for amateur, citizen band, or general mobile radio services.⁵

In general, wiretapping requires the individual to overhear a private phone conversation knowingly. Accidentally listening to a phone communication is not intentional. For example, if a cordless telephone picks up another line’s phone conversation, it may not be wiretapping. However, if the listener continues to listen to the conversation or attempts to record the conversation, it may become illegal wiretapping.

Note that a potential defense to eavesdropping charges is that the conversation occurred in a public place, the parties the conversation had no reasonable expectation of privacy.

5. Related Offenses

Extortion CRS 18-3-207

In Colorado, extortion involves threatening another person to do something, or refrain from doing something, against their will. Extortion is also sometimes known as blackmail. Wiretapping may be used to gather information to use in extortion. Extortion may be charged as a class 4 felony, with penalties including up to 6 years in prison and a fine of up to $500,000.

Telecommunications Crime CRS 18-9-309

Telecommunications crime is a broad statute that prohibits the use, possession, or sale of illegal telecommunications equipment or use of telecom equipment without lawful permission. These offenses involving communications can result in civil infraction, misdemeanor, or felony charges.

Also see our related article on the Colorado crime of obstructing telephone service.

Legal References