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

  1. Great article.

    Send some work my way and I will be certain to adhere to the privacy laws and I will keep my “intercept” to only what is legal as far as the old NRS laws are concerned. We need a new rule book quickly so that it can keep up with technology.

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