You may Record, They may Stingray
Published on Monday, April 11th, 2016
People often ask if it is legal to record conversations without the other party’s knowledge. Essentially, in Oklahoma, you may record a conversation as long as you are a party to the conversation and have no criminal intent. See Okla. Stat. tit. 13, § 176.4(4-5). The law specifically states:
It is not unlawful pursuant to the Security of Communications Act for:
a person acting under color of law to intercept a wire, oral or electronic communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; or
a person not acting under color of law to intercept a wire, oral or electronic communication when such person is a party to the communication or when one of the parties to the communication has given prior consent to such interception unless the communication is intercepted for the purpose of committing any criminal act; or…
Okla. Stat. tit. 13, § 176.4(4-5).
In researching the recording rule, I stumbled across an interesting provision immediately following the paragraphs above. Oklahoma law specifically protects communication companies who manufacture and transport devices used for illegal surveillance, as long as they are conducting business with the government. See Okla. Stat. tit. 13, § 176.4(6). It is legal for:
a communication common carrier or an officer, agent, or employee thereof, or a person under contract with a communication common carrier, in the normal course of the business of the communication common carrier bidding upon contracts with or in the course of doing business with the United States, a state, or a political subdivision thereof, in the normal course of the activities of said entities, to send through the mail, send or carry in interstate or foreign commerce, manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders the device primarily useful for the purpose of the illegal interception of wire, oral or electronic communications; or…
Okla. Stat. tit. 13, § 176.4(6).
The provision shields communication common carriers when producing and selling devices used for illegal surveillance at the behest of the government. Notably, the exemption applies to any state and political subdivision of the United States. Thus, communication companies may produce and sell illegal surveillance devices to the Armed forces, NSA, CIA, DEA, FBI (other three-letter organizations of which we are not even aware) and local law enforcement.
The provision reminds me of a device called the Stingray. The Stingray is “one of the government’s most powerful phone surveillance tools — capable of intercepting data from hundreds of people’s cellphones at a time.” Until recently, devices like the Stingray were highly classified. Today, however, local police departments sometimes use Stingrays to investigate even mundane crimes such as broken windows. Defense attorneys are often unaware of the government’s use of electronic surveillance devices such as the Stingray. Consequently, attorneys are unable to examine the potential Fourth Amendment search and seizure violations the employment of such devices might create.
Certainly, as technology advances and the use high tech surveillance devices increases, our Constitutional Fourth Amendment protections will be further challenged. This area of law is evolving rapidly and we all must remain vigilant in the protection of our civil liberties. If you have questions regarding the use of electronic surveillance or other search and seizure issues, you may need to contact an attorney.
 Communication common carrier “means, for the purposes of the Security of Communications Act only, any telephone or telegraph company, rural telephone cooperative, communications transmission company or other public communications company under the laws of this state[.]”Okla. Stat. tit. 13, § 176.2(4).
 Brad Heath, USA Today, Police Secretly Track Cellphones to Solve Routine Crimes, August 24, 2015 http://www.usatoday.com/story/news/2015/08/23/baltimore-police-stingray-cell-surveillance/31994181/.