In Colorado, eavesdropping is a criminal offense. C.R.S. 18-9-304 states:
So, what does this really mean? It means that if you are visibly present
and are a principal party to a conversation or discussion, it is legal
for you to record a conversation without anyone else’s knowledge
that you are making the recording. Under those circumstances, hiding a
tape recorder or making an audio recording on your phone while in your
pocket would not be a criminal offense. However, it is not legal to record
a conversation or discussion if you are not present, or even if you are
present but you are not a principal party to the conversation or discussion.
Even if you are visibly present and a principal party to a conversation
or discussion and you legally record the conversation or discussion without
the other party’s knowledge, your actions are not ethical. Let me
explain. When you record someone else in a conversation or discussion
without their knowledge, you are making the recording surreptitiously.
Just because surreptitious recordings are legal in some circumstances does
not mean that you should engage in such conduct. For instance, lawyers
are prohibited from making surreptitious recordings. The Colorado Rules
of Professional Conduct prohibits attorneys from conduct involving dishonesty,
fraud, deceit or misrepresentation (Rule 8.4), and also prohibits attorneys
from making false or misleading statements of facts to third persons (Rule
4.1). The Colorado Supreme Court has stated that an “undisclosed
use of a recording device necessarily involves elements of deception and
trickery which do not comport with the high standards of candor and fairness
to which all attorneys are bound.”
People v. Smith, 778 P.2d 685 (Colo. 1989). In fact, Ethics Opinion 112 indicates that
a lawyer should not advise another person to record a conversation. Rather,
lawyers should only advise of the legal parameters that apply to surreptitious
recordings and not suggest making surreptitious recordings. While these
standards do not apply to non-lawyers, it does not change the fact that
a person making a surreptitious recording is using elements of deception
and trickery in doing so.
Simply put, just because something is legal does not make it ethical—and
this rings true with regard to hidden tape recorders.