ORS 165.540 makes it a crime to obtain telephone conversations without the consent of at least one participant. It also makes it a crime to obtain “the whole or any part of a conversation by means of any device, contrivance, machine, or apparatus, whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained.” Nanny cams, secret recording devices, these things would be treated as violations of ORS 165.540(1)(c) if they record audio. If the recording devices only record video without sound, the law does not prohibit their use. However, under ORS 163.700, it’s still a crime to video record naked people in locations where they reasonably expect privacy, such as bathrooms or dressing rooms.
The ORS 165.540 communication recording prohibition was opposed in court by Project Veritas, a right-wing media company that specializes in undercover journalism/ambush journalism. Project Veritas is known for making secret recordings of conversations with an investigative target, a practice that was seen as directly in violation of ORS 165.540. Project Veritas fought the case to the 9th Circuit on the grounds that a restraint on secret recording of conversations was a form of restraint on free speech. In Project Veritas v. Schmidt, 72 F.4th 1043 (9th Cir. 2023), the three-judge panel of the 9th Circuit court agreed with Project Veritas and struck down ORS 165.540(1)(c) as a form of restriction on free speech, allowing recording of conversations without consent from the individuals unless it was a telephone conversation.
The story doesn’t end there though. There’s a process in the U.S. Courts of Appeals that allows a party to petition the court to rehear the appeal, en banc (the whole court with all the judges) rather than just in a three-judge panel. Oregon brought that petition for rehearing, and in Project Veritas v. Schmidt, 95 F.4th 1152 (9th Cir. 2024), one year later, the entire 9th Circuit Court reheard the case and disagreed with the previous decision, vacating the 2023 holding and determining that the court would hear the case again. This led to Project Veritas v. Schmidt, 125 F.4th 929 (9th Cir. 2025), this year, where the 9th Circuit “easily concluded” that ORS 165.540 was content agnostic, neutral, narrowly tailored, and valid. Therefore, ORS 165.540 was once more valid law, meaning you do need consent from or, at the very least, need to inform all individuals before you record conversations.
Project Veritas submitted a petition for certiorari on April 7, 2025, asking for the U.S. Supreme Court to reconsider the case, but at present, no certiorari has been granted. For the present, to record conversations, you require the consent of those being recorded or you need to inform the parties if you record audio. Keep this in mind, because it may be wise to ask your seller if they have anything in the house that can pick up or record ambient audio before you plan that open house.