Current through 2021 Legislative Session
Section 18-9-305 - Exceptions(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.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.
For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805.