Wiretapping – It’s the word for secretly listening to someone who is talking to someone else by using their devices

DISCLAIMER: This blog post is not intended to form an attorney-client relationship, and it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.

NOTE: For background material, start with my initial blog post regarding wiretapping law in Nevada.

So, in 2017, the Supreme Court of Nevada established that tape-recording a phone call qualifies as an “intercept” for purposes of NRS 200.620, the criminal statute applying to us all that makes it a crime (a felony, in fact) to commit wiretapping in Nevada. See Ditech Financial, LLC v. Buckles ex rel. Himself, 401 P.3d 215, 217 (Nev. 2017) (citations omitted)). Under current Nevada law, any intercept requires two-party, prior consent, see id. – otherwise the intercepting party is subject to felony charges, see NRS 200.690. NRS Chapter 200 applies to everyone, so we should all understand how it governs our behavior. Chapter 179 appears largely irrelevant for the general public’s conduct, though the Supreme Court of Nevada has, in the past, examined it for the purposes of Chapter 200.

The Ditech opinion begs the question, then – what else qualifies as an “intercept?” [1] If a person BCCs someone on an email using a computer while on Nevada soil, is this an “intercept”? What about quietly listening in on a phone call when one person is using speakerphone and the other person does not know or appreciate that a third person is listening? For now, it appears that the definition of “intercept” is limited to “the aural acquisition of the contents of any wire, electronic[,] or oral communications through the use of any electronic, mechanical[,] or other device or of any sending or receiving equipment,” NRS 179.430. The Supreme Court of Nevada could, if it were so inclined, expand upon this definition for purposes of NRS Chapter 200, because “intercept” is not technically defined there. But for now, the Chapter 179 definition apparently reigns supreme. There is, though, more to the issue – Please read on and decide for yourself.

Returning to the original line of questioning – what is an “intercept?” What the heck does the Chapter 179 definition of “intercept” even mean? Look no further, I’ll break it down for you:

  • “the aural acquisition of the contents”

For guidance, we turn to the handy dandy dictionaries – Black’s Law Dictionary has defined “aural acquisition” to mean, “Under the Federal Wiretapping Act, hearing or tape-recording a communication, as opposed to tracing its origin or destination.” Black’s Law Dictionary 127 (7th ed. 1999) (emphasis added) (citing 18 USCA § 2510(4)). Not Nevada law, obviously, but certainly enlightening. What else have we got? Merriam-Webster defines “aural” to mean, “of or relating to the ear or to the sense of hearing.” Aural, Merriam-Webster (emphasis added) (updated May 25, 2018), https://www.merriam-webster.com/dictionary/aural (last accessed May 31, 2018).

Continuing, the phrase “the contents” is self-explanatory and should be taken to mean the substance of the communication itself.

  • “of any wire, electronic[,] or oral communications through the use of any electronic, mechanical[,] or other device or of any sending or receiving equipment,”

For conduct to qualify as Chapter 200 “wiretapping,” it must be an “intercept” of a “wire communication.” We have already seen the Supreme Court of Nevada adopt Chapter 179’s definition of intercept, but it may step away from this definition under the right circumstances. It is, by no means, bound to continue honoring Chapter 179’s definition for purposes of analyzing Nevada’s wiretapping law. The Supreme Court of Nevada seems to have sidestepped the issue of what qualifies as an “intercept” under Chapter 200, in Sharpe v. State, 131 Nev. Adv. Op. 32, 350 P.3d 388 (2015). It appears to have done so because the Sharpe opinion concluded that “wire communication” means cell phone calls and text messages. Id. at 391. But it did not, again, consider the definition of “intercept” during its analysis; it probably should have considered it, because it appears that Nevada law could be interpreted incorrectly to limit the term “intercept” under Chapter 200 to “aural acquisition,” NRS 179.430. See also Ditech Financial, LLC v. Buckles ex rel. Himself, 401 P.3d 215, 217 (Nev. 2017) (citations omitted)); infra. There is no way to read Chapter 179’s definition of “intercept” to include things like text messages, IMs, Facebook messages, etc. (“written communications”), but Chapter 200’s language could, and should, be interpreted to prohibit wiretapping of written communications.

In fact, I predict that the Supreme Court of Nevada would expand the term “intercept” under Chapter 200 (which applies to all of us) beyond the phrase’s meaning in Chapter 179 (which does not), when faced with a wiretapping case involving a member of the general public in Nevada. Here’s why: NRS 200.610(1)’s definition of “wire communication” (which includes written communications) is broader than the one the definition of “intercept” (which is limited to aural communications, see NRS 179.430) that the Supreme Court of Nevada used in its Ditech analysis – which was fine, because the form of communication was not at issue in that case, since the Ditech opinion was analyzing whether telephone calls intercepted outside of Nevada’s borders fell within the scope of Nevada’s wiretapping laws. It was not faced with the question of whether or not a written communication falls within the scope of Nevada’s wiretapping laws.

The Supreme Court of Nevada will probably acknowledge that Chapter 200’s definition of “wire communication” is different than Chapter 179’s – and Chapter 200 is far more applicable to the general public, so this is an important point for everyone to understand. Under Chapter 200, “wire communication” applies to “the transmission of writing, signs, signals, pictures[,] and sounds,” NRS 200.610(2) (emphases added). The Supreme Court of Nevada would defy logic and convention to limit the definition of “intercept” under Chapter 200 to “aural acquisition” only. Under Chapter 179, Nevada’s Legislature did limit this definition; under Chapter 200, “intercept” is not defined at all. It is fair to expect that the Supreme Court of Nevada would examine the entire statutory scheme and see that Chapter 179’s definition is illuminating but cannot be coherently incorporated into Chapter 200 without producing an absurd result.

  • So, what’s the point?

Well, the point is that the general public should be careful about surreptitiously reading, recording, or listening to a conversation to which they are not a party. The law has not caught up to the times in this respect, so it is difficult to know exactly how a criminal proceeding for Chapter 200 wiretapping would pan out. For now, the Sharpe case demonstrates the Supreme Court of Nevada’s willingness to sidestep the issue of defining the term “intercept” under Chapter 200 and to implicitly conclude that written communications are protected by Nevada’s wiretapping law as it pertains to the general public.

“It is unlawful for any person to intercept or attempt to intercept any wire communication” without two-party consent. See NRS 200.620(1). This appears to include listening in while the other communicating party is unaware of your presence; reading an ongoing, written conversation that is happening via text message, Facebook messenger, or similar messaging software program; it could include BCCing a third-party in an email; and it may even include, arguably, screenshotting written messages. The existing ambiguity in the law requires an updated definition of “intercept” in Chapter 200. Nevada’s legislature should catch up to the times, in this area of criminal wiretapping, and clarify the conduct that it intends to prohibit.

In conclusion, the 21st Century brings a whole host of unintended and unforeseen issues, and in this Brave New World it is important to know the law that governs the devices that so many use on a daily basis – our phones, tablets, computers, or GoPros, etc. Stay tuned, because, as previously stated, I will continue to examine this exciting area of law and how it serves (or fails) us during these times.

[1] This blog post is intended to interpret Nevada law only – Federal law is a whole different animal and is not covered here, but I may cover it in the future, time and interest permitting!

 

In liberty,

Matthew B. Beckstead, Esq.**

 

 

** Licensed in Nevada

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Thinking About Recording Your Conversation? Read This and Think Again.

DISCLAIMER: This blog post is not intended to form an attorney-client relationship, and it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.

 

This blog article analyzes new case law that clarifies the definition of “wire communication” and holds that the act of recording must occur within Nevada for Nevada’s two-party consent requirement to apply. A person who is physically in Nevada violates Nevada law when he or she records his or her own telephone conversation, and he or she is subject to criminal penalties, unless the person obtains either a court order or a properly obtained ratification pursuant to NRS 200.620(3). See NRS 200.620, 200.690; infra.

 

Nevada law prohibits a person from “intercept[ing] or attempt[ing] to intercept any wire communication,” NRS 200.620(1) (emphasis added), unless the person fulfills both of the following two requirements:

 

  1. Prior consent of one of the parties to the communication.” NRS 200.620(1)(a) (emphasis added); AND
  2. Some emergency situation that makes it “impractical to obtain a court order” authorizing the intercept or attempted intercept. NRS 200.620(1)(b). See also NRS 200.620(3) (requiring, inter alia, that after a completed intercept, “a written application to a justice of the Supreme Court or district judge for ratification of the interception” within 72 hours of the interception).

 

See also Lane v. Allstate Ins. Co., 969 P.2d 938, 939 (Nev. 1998) (concluding that “single party interception must be judicially pre-approved or judicially ratified where an emergency exists to make pre-approval impractical”),[1] cited with approval in Abid v. Abid, 406 P.3d 476 (Nev. 2017).

 

For purposes of NRS 200.620, the Nevada legislature has defined “wire communication” to mean:

 

[T]he transmission of writing, signs, signals, pictures[,] and sounds of all kinds by wire, cable, or other similar connection between the points of origin and reception of such transmission, including all facilities and services incidental to such transmission, which facilities and services include, among other things, the receipt, forwarding[,] and delivering of communications.

 

NRS 200.610(2); see also NRS 200.610 et seq.

 

The definition of the phrase “wire communication” in NRS 200.610(2), including for purposes of NRS 200.620, probably includes cell phone calls and text messages, because, in recent years, the Supreme Court of Nevada has interpreted the phrase “wire communication” (as defined in NRS 179.455) to include cell phone calls and text messages. See Sharpe v. State, 131 Nev. Adv. Op. 32, 350 P.3d 388, 391-92 (Nev. 2015) (interpreting a definition of “wire communication” similar, but not identical, to NRS 200.610(2) to “include[] cellular telephone calls and text messages by its plain terms” when the calls and text messages are “‘made in whole or in part . . . by the aid of wire, cable[,] or other like connection between the point of origin and the point of reception.’” Id. at 392 (quoting NRS 179.455)). See generally Ditech Financial, LLC v. Buckles, 133 Nev. Adv. Op. 64, 401 P.3d 215, 217 (Nev. 2017) (noting that “[t]his court has concluded that ‘the tape-recording of telephone conversations constitutes an intercept,’ and interpreted NRS 200.620 ‘to prohibit the taping of telephone conversations with the consent of only one party.’” Id. (citing Lane v. Allstate Ins. Co., 114 Nev. 1176, 1179, 969 P.2d 938, 940 (1998); David, Ira, Note, Privacy Concerns Regarding the Monitoring of Instant Messaging in the Workplace: Is It Big Brother or Just Business?, 5 Nev. L.J. 319, 330 (2004))). But see Ditech Financial, LLC v. Buckles, 133 Nev. Adv. Op. 64, 401 P.3d 215, 216, 217-218 (“[H]olding that NRS 200.620 does not apply to the recording of interstate calls when the act of recording takes place outside Nevada.”).[2]

 

In Lane v. Allstate Ins. Co., the court considered multiple issues, including whether a person could record their own telephone conversations. 969 P.2d 938, 940 (Nev. 1998). The Lane majority opinion agreed with the district court’s conclusion “that Lane violated the provisions of NRS 200.620 when he tape-recorded telephone conversations with employees of his former employer.” Id. at 941.[3]

 

In the court’s majority opinion regarding the interpretation of NRS 200.620, Justices Maupin, Shearing, and Young concluded that NRS 200.620 requires two-party consent to record a telephone conversation. See Lane, 969 P.2d at 939 (Maupin, J.), 941-42 (Shearing, J., concurring in part). The exception to this general rule is where the recording is pre-approved by a court or is posthumously ratified, within 72 hours, pursuant to NRS 200.620(3). See id. at 941-42 (Shearing, J. concurring in part); see also NRS 200.620(1) (noting that a court order is authorized pursuant to NRS 179.410 to NRS 179.515).

 

So, the takeaway from all of this is that Nevada law considers “willful and knowing” one-party recording of a person’s telephone call, without a court order or subsequent court ratification in the context of an emergency situation, to be unlawful – a Class D Felony, in fact. See NRS 200.690. This includes a cell-phone call, so any person in Nevada who uses an app on their cell phone to record their phone call, without obtaining prior consent from the other caller, has committed a Class D Felony. NRS 200.690 reads, in relevant part “A person who willfully and knowing violates NRS 200.620 to 200.650, inclusive . . . [s]hall be punished for a category D felony as provided in NRS 193.130 . . . [and is] liable” for actual damages, punitive damages, and attorney’s fees and costs. NRS 200.690(1).

 

A regular, civilian citizen might have an argument that the one-party recording was not “willful and knowing,” even if that person has violated NRS 200.620. See Lane v. Allstate, 969 P.2d 938 (Nev. 1998) (Springer, C.J., concurring in part) (“We certainly cannot hold Mr. Lane criminally responsible for violating a statute the meaning of which cannot be agreed upon by the members of this court.”) This argument is weaker today than it was when the Lane opinion was published, because, as noted above, the Supreme Court of Nevada has clarified the law on more than one occasion since Lane, having remained consistent that two-party consent is a must, in the absence of a prior court order or a subsequently obtained ratification pursuant to NRS 200.620(3).

 

I advise against recording a cell-phone call, video-messaging session, landline call, or other similar communication while physically in Nevada, unless you have prior, two-party consent to the recording. To do otherwise is to put yourself at risk of committing a felony.

 

[1] In other words, without judicial pre-approval, a single-party interception must be judicially ratified, have consent of one party, and be made in the context of an emergency, or it is unlawful.

[2] This article does not cover federal law, which could govern a particular intercept or attempted intercept of phone calls, text messages, and/or other communications. Before engaging in such conduct, consult with an attorney who is experienced in such matters.

[3] Lane v. Allstate contains a plurality opinion (1-2-1-1 opinion).  Justice Maupin wrote the majority opinion as to the interpretation of NRS 200.620; Justice Shearing wrote a partial concurrence, with which Justice Young agreed. Chief Justice Springer and Justice Rose each wrote separate dissenting opinions that concurred in the result, i.e., reversing the district court. A plurality opinion is “[a]n opinion lacking enough judges’ votes to constitute a majority, but receiving more votes than any other opinion.” Black’s Law Dictionary 1119 (7th ed. 1999).

 

In liberty,

Matthew B. Beckstead, Esq.**

 

 

** Licensed in Nevada

 

© All Rights Reserved. License granted to the general public to reproduce and distribute to other members of the general public for informational purposes, subject to condition that this publication not be altered in any way, including author name and contact information

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