Colorado § 18-9-303 - Wiretapping prohibited - penalty.

§ 18-9-303. Wiretapping prohibited - penalty.

(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

(e) Repealed.

(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 2 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 L. 2002: (1)(e) repealed, p. 1588, § 23, effective July 1. L. 2021: (2) amended, (SB 21-271), ch. 462, p. 3206, § 330, effective March 1, 2022. L. 2023: (2) amended, (HB 23-1293), ch. 298, p. 1790, § 40, effective October 1.

ANNOTATION

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).

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).

Recording played on telephone handset before every telephone call placed by a prisoner using that telephone stating that the call would be recorded, and the short jail orientation at which prisoners agreed to read and abide by rules contained in a handbook, which stated that outgoing telephone calls would be recorded, provided notice to the defendant that his calls would be recorded. When a prison inmate is required to permit monitoring of telephone calls as a condition of using prison telephones, the prisoner impliedly consents if he or she has notice of monitoring and still places calls on prison telephones. People v. Mares, 263 P.3d 699 (Colo. App. 2011).