In common law the jury has the power to decide the law according to the dictates of their conscience. The right of juries to judge both the law and the facts -- to nullify the law if it chose were a part of British constitutional law since the days of William Penn.
In Oregon, the Constitution states "the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases." [Art.1, Section 16]
Juries in Oregon have the power to serve, in effect, as the final legislature of the land concerning the law in a particular case. Essentially, the law must conform with the understanding of a reasonable person.
If an electronic device is involved like a telephone, in Oregon, only one person needs to consent. This is why a 911 dispatcher can record the conversation. [City of Lake Oswego v. Mylander, 84 Or App 15, 733 P2d 455 (1987)]
Further, if you can intercept and record a police broadcast which is unscrambled and the public has free and ready access. This is because the statute does "not apply to the receiving or obtaining of the contents of any radio or television broadcast transmitted for the use of the general public." [STATE v. BICHSEL B70 854; CA A47766.]
In Oregon Statues, however, like many States, everyone in the conversation must be informed when their conversation is being recorded. If they are not specifically informed that their conversation is being obtained it is deemed a crime.
[STATE v. KNOBEL86-454-M; CA A43491. 777 P.2d 985 (1989). 97 Or.App. 559. ]
Here is where the arbitrary and ambiguous interpretation of the law begins to unfold. Without their knowledge or consent, you can record, including the police, over the phone or the radio. However, in public, where they have no reasonable expectation of privacy, they cannot be recorded without their knowledge?
To slightly re-frame it, it is okay to record with one person's permission what you might think is private on a phone or radio telecommunications. However, what you consider to be a public conversation with a public official, you must have the knowledge and permission of all involved. While you are being given orders by an officer who may be violating your rights, you are supposed to rouse yourself from the shock of intrusion to tell them "I am recording your conversation with me."
The statute does not prohibit taking or transcribing notes of a conversation, which are rarely accurate and subject to considerable error. However, if you have proof of the truth with a recording, it is .
The Oregon Supreme Court claims this is not over-broad nor unnecessarily over burden the First Amendment in its protection of the press' need to gather news, yet admits the police may be biased in their version of the events. [State v. Knobel, 777 P. 2d 985 - Or: Court of Appeals 1989]
Potentially, you could have a computer on the spot to parse the voice of a speaker without actually recording the voice of anyone involved. Of course, you are depending on the software to correctly interpret what is being said and that is never wholly accurate. So, then, the absurdity of inaccuracy inherent in transcribing is preferred over the best source of testimony - the original voice recording. How is the digital recording of voice materially different than taking down quotes, except for inherently having more accuracy?
At what point do the courts put the burden on public officials for what they say? When does Oregon, in fact, say, any governmental interest in protecting conversational privacy is not implicated when officials are performing duties in public places? When do we acknowledge the chilling effect of criminalizing public recordings unnecessarily restricts First Amendment rights to a free press?
[Am. Civil Liberties Union of IL v. Alvarez]
[Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011]
[733 F. Supp. 465: Connell v. Town of Hudson 1990]
Gazette Publishing Co. v. Cox, Cause No. IP 65-C-528 (S.D.Ind. May 2, 1967).
[Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 638 (D. Minn. 1972)]
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