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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