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18-9-111 . Harassment - stalking.
Offenses involving communications
18-9-301 - Definitions.
18-9-302 - Wiretapping and eavesdropping devices prohibited - penalty.
18-9-303 - Wiretapping prohibited - penalty
18-9-304 - Eavesdropping prohibited - penalty.
18-9-305 - Exceptions.
18-9-306 - Abuse of telephone and telegraph service.
18-9-306.5 - Obstruction of telephone or telegraph service.
(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:
(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or
(b) In a public place directs obscene language or makes an obscene gesture to or at another person; or
(c) Follows a person in or about a public place; or
(e) Initiates communication with a person, anonymously or otherwise by telephone, computer, computer network, or computer system in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, or computer system that is obscene; or
(f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or
(g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another's home or private residence or other private property; or
(h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.
(1.5) As used in this section, unless the context otherwise requires, “obscene” means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions.
(2) Harassment pursuant to subsection (1) of this section is a class 3 misdemeanor; except that harassment is a class 1 misdemeanor if the offender commits harassment pursuant to subsection (1) of this section with the intent to intimidate or harass another person because of that person's actual or perceived race, color, religion, ancestry, or national origin.
(3) Any act prohibited by paragraph (e) of subsection (1) of this section may be deemed to have occurred or to have been committed at the place at which the telephone call, electronic mail, or other electronic communication was either made or received.
(4) (a) The general assembly hereby finds and declares that stalking is a serious problem in this state and nationwide. Although stalking often involves persons who have had an intimate relationship with one another, it can also involve persons who have little or no past relationship. A stalker will often maintain strong, unshakable, and irrational emotional feelings for his or her victim, and may likewise believe that the victim either returns these feelings of affection or will do so if the stalker is persistent enough. Further, the stalker often maintains this belief, despite a trivial or nonexistent basis for it and despite rejection, lack of reciprocation, efforts to restrict or avoid the stalker, and other facts that conflict with this belief. A stalker may also develop jealousy and animosity for persons who are in relationships with the victim, including family members, employers and co-workers, and friends, perceiving them as obstacles or as threats to the stalker's own “relationship” with the victim. Because stalking involves highly inappropriate intensity, persistence, and possessiveness, it entails great unpredictability and creates great stress and fear for the victim. Stalking involves severe intrusions on the victim's personal privacy and autonomy, with an immediate and long-lasting impact on quality of life as well as risks to security and safety of the victim and persons close to the victim, even in the absence of express threats of physical harm. The general assembly hereby recognizes the seriousness posed by stalking and adopts the provisions of this subsection (4) and subsections (5) and (6) of this section with the goal of encouraging and authorizing effective intervention before stalking can escalate into behavior that has even more serious consequences.
(b) A person commits stalking if directly, or indirectly through another person, such person knowingly:
(I) Makes a credible threat to another person and, in connection with such threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship; or
(II) Makes a credible threat to another person and, in connection with such threat, repeatedly makes any form of communication with that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or
(III) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this subparagraph (III), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.
(c) For the purposes of this subsection (4):
(I) Conduct “in connection with” a credible threat means acts which further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat;
(II) “Credible threat” means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person's safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. Such threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.
(III) “Immediate family” includes the person's spouse and the person's parent, grandparent, sibling, or child; and
(IV) “Repeated” or “repeatedly” means on more than one occasion.
(5) Where a person commits stalking under paragraph (b) of subsection (4) of this section, the following shall apply:
(a) A person commits a class 5 felony for a first offense.
(a.5) For a second or subsequent offense, if such offense occurs within seven years of the date of a prior offense for which such person was convicted, the offender commits a class 4 felony.
(b) If, at the time of the offense, there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect against such person prohibiting the behavior described in paragraph (b) of subsection (4) of this section, such person commits a class 4 felony. In addition, when a violation under subsection (4) of this section is committed in connection with a violation of a court order, including but not limited to any protection order or any order that sets forth the conditions of a bond, any sentence imposed for such violation pursuant to this subsection (5) shall run consecutively and not concurrently with any sentence imposed pursuant to section 18-6-803.5 and with any sentence imposed in a contempt proceeding for violation of the court order. Nothing in this paragraph (b) shall be construed to alter or diminish the inherent authority of the court to enforce its orders through civil or criminal contempt proceedings; however, before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the district of the court where the proceedings are to be heard and the district attorney for the district of the court where the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.
(6) A peace officer shall have a duty to respond as soon as reasonably possible to a report of stalking and to cooperate with the alleged victim in investigating such report.
Source: L. 71: R&RE, p. 469, § 1. C.R.S. 1963: § 40-9-111. L. 76: (1)(e) R&RE and (1.5) added, p. 561, § § 1, 2, effective May 21. L. 81: (1)(e) amended, p. 981, § 6, effective May 13. L. 90: (1)(d) repealed, p. 926, § 11, effective March 27. L. 92: (2) amended and (4) to (6) added, p. 413, § 1, effective July 1. L. 93: (5)(a) amended and (5)(a.5) added, p. 1703, § 1, effective July 1. L. 94: IP(1), (1)(g), and (1)(h) amended, p. 1463, § 3, effective July 1; (4) and (5) amended, p. 2018, § 1, effective July 1; (5)(b) amended, p. 1719, § 14, effective July 1. L. 95: (5) amended, p. 1258, § 26, effective July 1. L. 97: (4)(b)(I) amended, p. 1540, § 4, effective July 1. L. 99: (2), (4), and (5) amended, pp. 795, 792, § § 4, 1, effective July 1. L. 2000: (1)(e) and (3) amended, p. 693, § 4, effective July 1. L. 2003: (5)(b) amended, p. 1014, § 23, effective July 1.
Editor's notes: (1) Amendments to subsection (5) in House Bill 94-1045 and House Bill 94-1126 were harmonized. (2) Section 52 of chapter 171, Session Laws of Colorado 2000, provides that the act amending subsections (1)(e) and (3) applies to offenses committed on or after July 1, 2000. (2) Section 33 of chapter 139, Session Laws of Colorado 2003, provides that the act amending subsection (5)(b) applies to orders entered and offenses committed on or after July 1, 2003.
Cross references: For provisions concerning harassment by debt collectors or collection agencies, see § 12-14-106.
Gravamen of this offense is the thrusting of an offensive and unwanted communication on one who is unable to ignore it. People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979).
Defendant's spitting on the tenant constituted “physical contact” within the meaning of subsection (1)(a). People v. Peay, 5 P.3d 398 (Colo. App. 2000).
Subsection (1)(d) held unconstitutionally vague. This subsection violates the due process clause because it contains no limiting standards to define what conduct is prohibited and, conversely, what conduct is permitted. People v. Norman, 703 P.2d 1261 (Colo. 1985).
Former subsection (1)(e) was facially overbroad and therefore unconstitutional . Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975).
Subsection (1)(e) held not to be unconstitutionally vague because the statute defined the offense with particularized standards to limit the scope of the offense and the presence in the statute of the words “annoy” and “alarm”, by themselves, were not sufficient to render the statute unconstitutionally vague. People v. McBurney, 750 P.2d 916 (Colo. 1988).
Subsection (1)(g) is facially overbroad and unconstitutionally vague and there are no limiting constructions that will render it constitutional. People v. Smith, 862 P.2d 939 (Colo. 1993).
A defendant lacks standing to challenge the constitutionality of a statute as facially overbroad when the defendants alleged speech is precisely the type of activity which the telephone harassment statute was designed to regulate. People v. McBurney, 750 P.2d 916 (Colo. 1988).
This section and § 18-3-207, which classifies criminal extortion as a felony, address separate and distinct crimes and the classification of such offenses have a rational basis in fact and are reasonably related to legitimate government interests. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990).
Subsection (1)(h) is not unconstitutionally vague on its face. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).
The limited scope of the statute brings it within permissible limitations on free expression. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).
Subsection (4) (a) (II) held constitutional. By burdening only those communications furthering, promoting, or advancing an expressed credible threat, subsection (4)(a)(II) does not reach protected conduct. People v. Baer, 973 P.2d 1225 (Colo. 1999).
Nor is the provision void for vagueness since a person of ordinary intelligence can know what conduct is proscribed. People v. Baer, 973 P.2d 1225 (Colo. 1999).
What subsection (1)(h) prohibits. Subsection (1)(h) prohibits (1) “fighting words”, as heretofore defined, addressed to another person, (2) consisting of insults, taunts, or challenges, (3) repeatedly made, and (4) with intent to harass, annoy, or alarm another person. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).
Subsection (1)(h) requires an objective determination: Whether the words when directed to an average person would tend to induce an immediate breach of the peace. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).
“Annoy” in this section means “to irritate with a nettling or exasperating effect”. Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975).
“Alarm” in this section means “to arouse to a sense of danger; to put on the alert; to strike with fear; fill with anxiety as to threaten danger or harm”. Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975).
“Repeatedly” is a word of such common understanding that its meaning is not vague. It simply means in the context of subsection (1)(h) that the defendant uses insulting, taunting, or challenging language more than one time. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).
An electronic surveillance device installed on the victim's car “repeatedly” stored information about her movements thereby allowing the defendant to gain information about her on repeated occasions, and therefore satisfying the requirements of this section. People v. Sullivan, 53 P.3d 1181 (Colo. App. 2002).
Use of “obscene” in subsection (1)(e). Although subsection (1)(e) uses the word “obscene” to describe the speech which is prohibited, that subsection is clearly not designed to regulate the purveyance of “obscenity” as that word is used in Miller v. California (413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed.2d 419, rehearing denied, 414 U.S. 881, 94 S. Ct. 26, 38 L. Ed.2d 128 (1973)). Whatever the requirements of Miller v. California may be in a prosecution for alleged violations of law prohibiting published obscenity, those requirements are inapposite when the question is whether the state may prohibit unwanted verbal assaults on a person within the privacy of his own home. People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979).
The phrase “in connection with” indicates an intention by the general assembly that a continued relationship between the credible threat and the repeated communications is contemplated. People v. Baer, 973 P.2d 1225 (Colo. 1999).
A person must directly, or indirectly through another person, knowingly make a credible threat to another person and repeatedly make any form of communication with the recipient of the threat. People v. Baer, 973 P.2d 1225 (Colo. 1999).
The repeated communications may occur before, during, or after the credible threat but they must be connected to the threat. People v. Baer, 973 P.2d 1225 (Colo. 1999).
Whether the repeated communications are “in connection with” the threat is a matter of fact just as the existence of a credible threat itself . People v. Baer, 973 P.2d 1225 (Colo. 1999).
The defendant could not have been charged with a violation of subsection (4) until all of the elements of the crime are completed. People v. Bastian, 981 P.2d 203 (Colo. App. 1998).
The defendant may be charged with increased penalties because of amendments to subsection (4) that became effective in July when the defendant did not consummate following the victim until August, but had committed elements of the offense prior to July. People v. Bastian, 981 P.2d 203 (Colo. App. 1998).
The phrase “under surveillance” includes electronic surveillance that records a person's whereabouts as that person moves from one location to another and allows the stalker to access that information either simultaneously or shortly thereafter. People v.Sullivan, 53 P.3d 1181 (Colo. App. 2002).
Serious emotional distress was supported by the evidence where the victim testified that she suspected the defendant was stalking her for over a month, that she was concerned about constantly being watched, that she took alternate routes to her destinations, that she was uncomfortable and had stomach aches, that she had trouble sleeping and was anxious, and that she took a leave of absence from work to enter a safe house for her safety. People v. Sullivan, 53 P.3d 1181 (Colo. App. 2002).
Applied in Verner v. Colorado, 533 F. Supp. 1109 (D. Colo. 1982).
As used in sections 18-9-301 to 18-9-305, unless the context otherwise requires:
(1) “Aggrieved person” means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.
(1.5) “Aural transfer” means a transfer containing the human voice at any point between and including the point of origin and the point of reception.
(2) “Common carrier” means any person engaged as a common carrier for hire in intrastate, interstate, or foreign communication by wire or radio or in intrastate, interstate, or foreign radio transmission of energy.
(3) “Contents”, when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.
(3.3) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects interstate or foreign commerce but does not include:
(a) (Deleted by amendment, L. 97, p. 602, § 2, effective August 6, 1997.)
(b) Any wire or oral communication;
(c) Any communication made through a tone-only paging device; or
(d) Any communication from a tracking device.
(3.5) “Electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications.
(3.7) “Electronic communications system” means any wire, radio, electromagnetic, photooptical, or photoelectronic facilities for the transmission of electronic communications and any computer facilities or related electronic equipment for the electronic storage of such communications.
(4) “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, oral, or electronic communication, other than:
(a) Any telephone or telegraph instrument, equipment, or facility, or any component thereof, furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business, or furnished by such subscriber or user for connection to the facilities of such service and being used in the ordinary course of its business, or being used by a provider of wire or electronic communication service in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of his duties;
(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal hearing.
(4.5) “Electronic storage” means:
(a) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
(b) Any storage of such communication by an electronic communication service for purposes of backup protection of such communication.
(5) “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.
(6) “Investigative or law enforcement officer” means any officer of the United States or of the state of Colorado or a political subdivision thereof who is empowered by law to conduct investigations of, or to make arrests for, offenses enumerated in this part 3, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.
(7) “Judge of competent jurisdiction” means any justice of the supreme court or a judge of any district court of the state of Colorado.
(8) “Oral communication” means any oral communication uttered by any person believing that such communication is not subject to interception, under circumstances justifying such belief, but does not include any electronic communication.
(8.3) “Pen register” means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached but shall not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.
(8.5) “Readily accessible to the general public” means, with respect to a radio communication, that such communication is not:
(b) Transmitted using modulation techniques having essential parameters withheld from the public with the intention of preserving the privacy of such communication;
(c) Carried on a subcarrier or other signal subsidiary to a radio transmission;
(d) Transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication; or
(e) Transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the rules of the federal communications commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio.
(8.7) “Trap and trace device” means a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.
(8.9) “User” means any person or entity which uses an electronic communication service and is duly authorized by the provider of such service to engage in such use.
(9) “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection, including the use of such connection in a switching station, between the point of origin and the point of reception, furnished or operated by any person engaged in providing or operating such facilities for the transmission of communications and includes any electronic storage of such communication.
Source: L. 71: R&RE, p. 472, § 1. C.R.S. 1963: § 40-9-301. L. 88: (1), (3), IP(4), (4)(a), (5), (8), and (9) amended and (1.5), (3.3), (3.5), (3.7), (4.5), (8.3), (8.5), (8.7), and (8.9) added, p. 691, § 5, effective May 29. L. 97: (3.3) and (9) amended, p. 602, § 2, effective August 6.
Terms “conversation or discussion” in section 18-9-304 are synonymous with term “oral communication” as defined in subsection (8) of this section. People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).
Terms “telephone or telegraph communication” in section 18-9-303 are synonymous with “wire communication” as defined in subsection (9) of this section. People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).
Monitoring conversations between husband and wife in jail not wiretapping or eavesdropping. Monitoring the conversations between a husband and wife in the visiting room of a jail is not wiretapping or eavesdropping because such conversations are not within the statutory definitions of “wire communication” and “oral communication”. People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).
Any person who manufactures, buys, sells, or knowingly has in his possession any instrument, device, contrivance, machine, or apparatus designed or commonly used for wiretapping or eavesdropping, as prohibited in sections 18-9-303 and 18-9-304, with the intent to unlawfully use or employ or allow the same to be so used or employed, or who knowingly aids, authorizes, agrees with, employs, permits, or conspires with any person to unlawfully manufacture, buy, sell, or have the same in his possession is guilty of a class 2 misdemeanor. Upon commission of a second or subsequent offense, any person committing the same commits a class 5 felony.
Source: L. 71: R&RE, p. 473, § 1. C.R.S. 1963: § 40-9-302.
(1) Any person not a sender or intended receiver of a telephone or telegraph communication commits wiretapping if he:
(a) Knowingly overhears, reads, takes, copies, or records a telephone, telegraph, or electronic communication without the consent of either a sender or a receiver thereof or attempts to do so; or
(b) Intentionally overhears, reads, takes, copies, or records a telephone, telegraph, or electronic communication for the purpose of committing or aiding or abetting the commission of an unlawful act; or
(c) Knowingly uses for any purpose or discloses to any person the contents of any such communication, or attempts to do so, while knowing or having reason to know the information was obtained in violation of this section; or
(d) Knowingly taps or makes any connection with any telephone or telegraph line, wire, cable, or instrument belonging to another or with any electronic, mechanical, or other device belonging to another or installs any device whether connected or not which permits the interception of messages; or
(f) Knowingly uses any apparatus to unlawfully do, or cause to be done, any act prohibited by this section or aids, authorizes, agrees with, employs, permits, or intentionally conspires with any person to violate the provisions of this section.
(2) Wiretapping is a class 6 felony; except that, if the wiretapping involves a cordless telephone, it is a class 1 misdemeanor.
Source: L. 71: R&RE, p. 473, § 1. C.R.S. 1963: § 40-9-303. L. 77: (1)(a), (1)(c), (1)(d), (1)(e), and (1)(f) amended, p. 969, § 59, effective July 1. L. 88: (1)(a), (1)(b), (1)(d), and (1)(e) amended, p. 693, § 6, effective May 29. L. 89: (2) amended, p. 841, § 90, effective July 1. L. 97: (2) amended, p. 602, § 3, effective August 6. L. 2002: (1)(e) repealed, p. 1588, § 23, effective July 1.
Editor's note: Section 31 of chapter 322, Session Laws of Colorado 2002, provides that the act repealing subsection (1)(e) applies to offenses committed on or after July 1, 2002.
C.J.S. See 77 C.J.S., Right of Privacy, § 1, 2, 4, 35; 86 C.J.S., Telegraphs, Telephones, Radio, and Television, § 287.
Law reviews. For article, “Interspousal Wiretapping and Eavesdropping: An Update - Part I”, see 24 Colo. Law. 2343 (1995). For article, “Interspousal Wiretapping and Eavesdropping: An Update - Part II”, see Colo. Law. 2569 (1995).
Paragraph (1)(e) is not unconstitutionally overbroad as infringing on fundamental or express rights. Although the paragraph might prohibit a parent from hanging up or disconnecting a child's telephone call, such a proscription is not real and substantial when compared to the statute's prohibition of a whole range of easily identifiable and constitutionally proscribable conduct. People v. Shepard, 983 P.2d 1 (Colo. 1999).
Subsection (2) does not violate the equal protection clause. Because there is less of a privacy expectation when using a cordless telephone and because such calls may be more easily intercepted, the general assembly may impose a lesser penalty for wiretapping involving a cordless telephone. People v. Richardson, 983 P.2d 5 (Colo. 1999).
Section 16-15-102 (10) inapplicable. Since § 18-9-304 and this section do not prohibit or make unlawful consensual recorded eavesdropping, where one party to the conversation agrees to the recording, there is no “unlawful interception” within the meaning of § 16-15-102 (10). That section is, therefore, not applicable, and the evidence should not be suppressed. People v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975), cert. denied, 423 U.S. 1053, 96 S. Ct. 783, 46 L. Ed.2d 642 (1976).
Terms “telephone or telegraph communication” in this section are synonymous with “wire communication” as defined in § 18-9-301 (9). People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).
And monitoring conversations between husband and wife in jail not wiretapping. Monitoring the conversations between a husband and wife in the visiting room of a jail is not wiretapping because such conversations are not within the statutory definition of “wire communication”. People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).
(1) Any person not visibly present during a conversation or discussion commits eavesdropping if he:
(a) Knowingly overhears or records such conversation or discussion without the consent of at least one of the principal parties thereto, or attempts to do so; or
(b) Intentionally overhears or records such conversation or discussion for the purpose of committing, aiding, or abetting the commission of an unlawful act; or
(c) Knowingly uses for any purpose, discloses, or attempts to use or disclose to any other person the contents of any such conversation or discussion while knowing or having reason to know the information was obtained in violation of this section; or
(d) Knowingly aids, authorizes, agrees with, employs, permits, or intentionally conspires with any person to violate the provisions of this section.
(2) Eavesdropping is a class 6 felony.
Source: L. 71: R&RE, p. 474, § 1. C.R.S. 1963: § 40-9-304. L. 77: (1)(a), (1)(c), and (1)(d) amended, p. 970, § 60, effective July 1. L. 89: (2) amended, p. 841, § 91, effective July 1.
Law reviews. For note, “Legislation: The Statutory Right of Privacy in Colorado — Section 33 of the Eavesdropping Act: Should It be Narrowly Construed?”, see 41 U. Colo. L. Rev. 174 (1969). For article, “Discovery and Admissibility of Sound Recordings and Their Transcripts”, see 14 Colo. Law. 999 (1985).
Section recognizes right of privacy. The supreme court specifically recognizes the theory of tortious conduct designated as the invasion of the right of privacy, noting that the general assembly gave legislative recognition of the right of privacy by the enactment of this section. Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970) (decided under former § 40-4-33, C.R.S.).
Eavesdropping statutes require use of subjective and objective tests to determine whether a person's conversation qualifies as protected oral communications. People v. Hart, 787 P.2d 186 (Colo. App. 1989).
Section 16-15-102 (10) inapplicable. Since § 18-9-303 and this section do not prohibit or make unlawful consensual recorded eavesdropping, where one party to the conversation agrees to the recording, there is no “unlawful interception” within the meaning of § 16-15-102 (10). That section is, therefore, not applicable, and the evidence should not be suppressed. People v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975), cert. denied, 423 U.S. 1053, 96 S. Ct. 783, 46 L. Ed.2d 642 (1976).
Terms “conversation or discussion” in this section are synonymous with term “oral communication” as defined in § 18-9-301 (8). People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).
And monitoring conversations between husband and wife in jail not eavesdropping. Monitoring the conversations between a husband and wife in the visiting room of a jail is not eavesdropping because such conversations are not within the statutory definition of “oral communication”. People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).
Consensually overheard conversation not eavesdropping. By the terms of subsection (1)(a), a consensually overheard conversation is not eavesdropping. People v. Palmer, 652 P.2d 1092 (Colo. App. 1982).
Consent of one party to recording supports summary judgment. Where plaintiff claimed that certain telephone conversations were illegally recorded, but admitted that the other party to the conversations had consented, there was no genuine issue of fact and summary judgment was proper. Abrahamsen v. Mountain States Tel. & Tel. Co., 177 Colo. 422, 494 P.2d 1287 (1972) (decided under former § 40-4-28, C.R.S.).
For “consent” to be valid, it must be voluntary and uncoerced. Generally, it is sufficient for the prosecution, who has the burden of proving consent, to show that an informant had knowledge of the monitoring setup; however, when coercion is alleged, the prosecution must show that there was no undue pressure, threats or improper inducements. People v. Rivera, 765 P.2d 624 (Colo. App. 1988).
Whether the circumstances of a communication justify a belief that it is not subject to interception is analyzed in the same manner as the question of whether an investigative activity amounts to a search: whether there is a justifiable expectation of privacy at the time and place of the communication. People v. Lesslie, 939 P.2d 443 (Colo. App. 1996).
Occupants of bar restroom had an objectively reasonable expectation of privacy from surveillance with a police transmitter despite the fact that police or others might hear a conversation unaided. People v. Lesslie, 939 P.2d 443 (Colo. App. 1996).
(1) Nothing in sections 18-9-302 to 18-9-304 shall be interpreted to prevent a news agency, or an employee thereof, from using the accepted tools and equipment of that news medium in the course of reporting or investigating a public and newsworthy event; nor shall said sections prevent any person from using wiretapping or eavesdropping devices on his own premises for security or business purposes if reasonable notice of the use of such devices is given to the public.
(2) No part of sections 18-9-302 to 18-9-304 shall apply to the normal use of services, facilities, and equipment provided by a provider of wire or electronic communication service pursuant to its tariffs on file with the public utilities commission of the state of Colorado and with the federal communications commission; and said sections shall not apply to the normal functions of any operator of a switchboard nor to any officer, agent, or employee of a provider of wire or electronic communication service or other person engaged in the business of providing service, equipment, and facilities for communication who performs an otherwise prohibited act if such act is necessary to provide the communication services, equipment, or facilities or is necessary in the construction, maintenance, repair, operations, or use of the same, including the obtaining of billing and accounting information, the protecting of the communication services, equipment, and facilities from illegal use in violation of the tariffs referred to in this subsection (2), the protecting of the provider of wire or electronic communication service from the commission of fraud against it, and the providing of requested information in response to a subpoena or court order issued by a court of competent jurisdiction or on demand of other lawful authority.
(3) It shall not be unlawful under sections 18-9-302 to 18-9-304 for an officer, employee, or agent of any provider of wire or electronic communication service or other person to provide information, facilities, or technical assistance to an investigative or law enforcement officer who, pursuant to section 16-15-102, C.R.S., is authorized to intercept a wire, oral, or electronic communication for that purpose.
(4) A good faith reliance on a court order or the provisions of article 15 of title 16, C.R.S., shall constitute a complete defense to any criminal action brought under provision of sections 18-9-302 to 18-9-304 or any civil action brought under any other law of the state of Colorado. This section shall not be construed in any manner which would allow an investigative or law enforcement officer of the state of Colorado to engage in any wiretapping or eavesdropping without prior authorization by a court of competent jurisdiction under the provisions of article 15 of title 16, C.R.S., except as provided in section 16-15-102 (18), C.R.S.
(4.3) It shall not be unlawful under sections 18-9-302 to 18-9-304 for any person:
(a) To intercept or access an electronic communication made through an electronic communications system that is configured so that such electronic communication is readily accessible to the general public;
(b) To intercept any radio communication which is transmitted by:
(I) Any station for the use of the general public or that relates to ships, aircraft, vehicles, or persons in distress;
(II) Any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;
(III) A station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or
(IV) Any marine or aeronautical communications system;
(c) To engage in any conduct which is:
(I) Prohibited by section 633 of the federal “Communications Act of 1934", as amended; or
(II) Excepted from the application of section 705 (a) of the federal “Communications Act of 1934", as amended, by section 705 (b) of said act;
(d) To intercept any wire or electronic communication, the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference; or
(e) For other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted.
(4.5) It shall not be unlawful under sections 18-9-302 to 18-9-304:
(a) To use a pen register or a trap and trace device; or
(b) For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service from fraudulent, unlawful, or abusive use of such service.
(4.7) A person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication other than a communication to such person or entity, or an agent thereof, while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient; except that a person or entity providing electronic communication service to the public may divulge the contents of any such communication:
(a) As otherwise authorized in section 16-15-102 (12), (13), (14), and (16), C.R.S., and subsections (2) and (3) of this section;
(b) With the lawful consent of the originator or any addressee or intended recipient of such communication;
(c) To a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or
(d) Which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency.
(4.9) It shall not be unlawful for a district attorney or law enforcement officer to listen to a recording of or to read a transcription of the contents of an electronic communication involving a cordless telephone when the district attorney or law enforcement officer has come into possession of such materials from a third party. In order to use such materials as evidence in a prosecution for a crime other than wiretapping or eavesdropping, the district attorney or law enforcement officer shall have a reasonable basis for believing that the recording or transcription is reliable and shall also have separate probable cause based on corroborating evidence to support a reasonable belief that the crime was committed. Nothing in this subsection (4.9) shall preclude a district attorney from prosecuting a person for a violation of section 18-9-303 or 18-9-304.
(5) The exceptions in this section shall be affirmative defenses.
Source: L. 71: R&RE, p. 474, § 1. C.R.S. 1963: § 40-9-305. L. 72: p. 272, § 4. L. 73: p. 539, § 10. L. 88: (2) and (3) amended and (4.3), (4.5), and (4.7) added, p. 693, § 7, effective May 29. L. 91: (4) amended, p. 435, § 2, effective May 18. L. 97: (4.9) added, p. 602, § 4, effective August 6.
Cross references: For affirmative defenses generally, see § § 18-1-407, 18-1-710, and 18-1-805.
This section is not unconstitutionally vague in that it fails to delineate who has the responsibility of giving notice and does not state “how notice is to be given”. People v. McCauley, 192 Colo. 545, 561 P.2d 335 (1977).
The affirmative “security or business purpose” defense does not take effect until reasonable notice is given to the public by the agent, the owner, or some third party. People v. McCauley, 192 Colo. 545, 561 P.2d 335 (1977).
The burden of giving “reasonable notice” to the public can be placed upon the party who installed the wiretap. People v. McCauley, 192 Colo. 545, 561 P.2d 335 (1977).
Monitoring conversations between husband and wife in jail not wiretapping or eavesdropping. Monitoring the conversations between a husband and wife in the visiting room of a jail is not wiretapping or eavesdropping because such conversations are not within § 18-9-301's definitions of “wire communication” and “oral communication”. People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).
(1) A person commits a class 3 misdemeanor, if:
(a) As an employee of a telegraph or telephone company he knowingly divulges the contents or the purport of any message or part thereof sent or intended to be sent to any person other than one to whom said message is sent or person authorized to receive the same; or
(b) He knowingly sends or delivers a false message or furnishes or conspires to furnish such message to an operator to be sent or delivered with intent to injure, deceive, or defraud any person, corporation, or the public; or
(c) He knowingly and without authorization opens any sealed envelope enclosing a message with the purpose of learning the contents; or
(d) He impersonates another, and thereby procures the delivery to himself of the message directed to such person, with the intent to use, destroy, or detain the same; or
(e) He knowingly and without authorization reads or learns the contents or meaning of a message on its transit and uses or communicates to another any information so obtained; or
(f) He knowingly bribes a telegraph or telephone operator or employee of a telegraph or telephone company to disclose any private message or the purport of the same received by him by reason of his trust as agent of the company or uses such information when thus obtained.
Source: L. 71: R&RE, p. 475, § 1. C.R.S. 1963: § 40-9-306. L. 77: (1)(a), (1)(c), (1)(e), and (1)(f) amended, p. 970, § 61, effective July 1.
(1) A person commits obstruction of telephone or telegraph service if the person knowingly prevents, obstructs, or delays, by any means whatsoever, the sending, transmission, conveyance, or delivery in this state of any message, communication, or report by or through any telegraph or telephone line, wire, cable, or other facility or any cordless, wireless, electronic, mechanical, or other device.
(2) Obstruction of telephone or telegraph service is a class 1 misdemeanor.
Source: L. 2002: Entire section added, p. 1588, § 24, effective July 1. [HB 02-1237 repealed § 18-9-303 (1) (e), a Class 6 (Table 96) felony offense, and replaced it with § 18-9-306.5, a Class 1 (Table 97) misdemeanor.]
Editor's note: Section 31 of chapter 322, Session Laws of Colorado 2002, provides that the act enacting this section applies to offenses committed on or after July 1, 2002.
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