Under ORS 165.535-165.543, it is illegal to obtain any part of a telephone communication unless at least one participant in the phone call consents to the recording. Until recent court decisions, it was equally illegal to obtain any part of a non-telephonic conversation [e.g. oral conversation or video conference communication] unless all parties were specifically informed that the conversation was being recorded.
In 2019, in State v. Evensen, the Oregon Court of Appeals took a bite out of the statute when it ruled that an exception to the recording prohibition in the statute applied to all subscribers to telephone or radio communications services (or their family members) who conduct the recordings in their homes. As most homeowners (and sellers) are subscribers to some form of telephone or radio communications service, this called into question the applicability of the recording prohibitions in the context of real estate transactions.
More recently, in 2023, with Project Veritas v. Schmidt, the 9th Circuit Court of Appeals shot down the “need consent from all parties to record” requirement in ORS 165.540. The court found that requiring consent of all parties was a content-based restriction on speech when a third party is intentionally recording the conversations and was therefore unconstitutional as a violation of the First Amendment.
The end result is that in Oregon, a person no longer needs consent from all parties before recording a conversation [though you still need at least one party’s permission to record telephone communications].
Your Buyer should always be aware that they could be recorded while in the Seller’s home [though it is still illegal for a person to make video recordings of nonconsenting individuals in a state of nudity within bathrooms or dressing rooms, due to a separate law found in ORS 163]. If Buyers discuss their negotiation strategies or financing capacity within the Seller’s home, the Buyer may simply be telling the Seller all of Buyer’s confidential information and giving up the edge in any subsequent negotiations. In Oregon, the walls can legally have ears.
Now, just because the Ninth Circuit Court of Appeals tossed out Oregon’s secret recording law with respect to non-telephonic recordings doesn’t mean that sellers and sellers’ agents should conduct secret recordings. First, it is possible that this issue could be decided by the U.S. Supreme Court in the future, and that Court would have the final say regarding the constitutionality of Oregon’s statute. Second, best practice is for sellers to either not record buyers touring their home or, if recording is taking place, to disclose this to Buyers and their agents. Remember that sellers’ agents have legal and ethical duties to deal honestly and in good faith with all parties to a transaction and to disclose material facts not known or readily ascertainable to a party. It is at least arguably a violation of these duties for a seller’s agent to participate in the secret recording of a buyer and to use the information obtained against the buyer’s interest in the transaction.