Is it illegal to record someone without consent in Nevada?

Posted by Neil Shouse | Oct 30, 2018 | 0 Comments

It depends on whether the recording occurs in person or over the phone (or other wire communications).

Recording someone in-person in Nevada

Recording someone in-person ("oral communications") is legal in Nevada if:

  • at least one party to the conversation consents to the recording, or
  • the conversation is not private

Conversations are not "private" if they occur in public or other location where there is no reasonable expectation of privacy.[1] Therefore, it probably would be legal in Nevada to record the conversations of other people on a bus, in a restaurant, or in a stadium.

Recording someone over the phone in Nevada

Recording someone over the phone ("wiretapping") is legal in Nevada if:

  • the person recording the conversation has a court order authorizing the recording, or
  • there is an emergency where it is impractical to get a court order, and the person recording seeks a court order right away afterward, or
  • all parties to the conversation consent to the recording

In short, every party to the conversation would need to consent to the wiretapping for it to be legal. The only exception is if the recorder has a court order or seeks a court order after an emergency precluded him/her from getting a court order first.[2]

Note that 911 calls are always recorded, and the operator does not need to ask for the caller's permission first. 

Also note that different states have different wiretapping rules. Recordings that were legally intercepted in another state can still be admitted as evidence in Nevada even if the recording would have been illegal in Nevada.[3]

Learn more about Nevada wiretapping laws.

Penalties for illegal recording in Nevada

Nevada punishes illegal recording -- whether by wire or in person -- as a category D felony. The sentence includes:

In addition, the victim can sue the recorder and possibly recover:

  1. Actual damages or liquidated damages of $100 per day of violation but not less than $1,000 total (whichever is greater); and
  2. Punitive damages; and
  3. The victim's costs reasonably incurred in the lawsuit, including reasonable attorneys' fees[4]

Federal wiretapping laws

Wiretapping is a federal offense as well.  However, Nevada law is stricter than federal law under NRS 200.620. Under federal law, a party to a phone call is permitted to record it without anyone else's consent. But non-parties to a phone call can record it only if they get either a search warrant or every party's permission.

The penalty for violating federal wiretapping laws is up to five (5) years in prison and $250,000 in fines. The victim can also sue the recorder and recover punitive damages as well as attorney's fees.[5]

Legal References:

  1. NRS 200.650  Unauthorized, surreptitious intrusion of privacy by listening device prohibited.  Except as otherwise provided in NRS 179.410 to 179.515, inclusive, and 704.195, a person shall not intrude upon the privacy of other persons by surreptitiously listening to, monitoring or recording, or attempting to listen to, monitor or record, by means of any mechanical, electronic or other listening device, any private conversation engaged in by the other persons, or disclose the existence, content, substance, purport, effect or meaning of any conversation so listened to, monitored or recorded, unless authorized to do so by one of the persons engaging in the conversation.
  2. NRS 200.620  Interception and attempted interception of wire communication prohibited; exceptions.

          1.  Except as otherwise provided in NRS 179.410 to 179.515, inclusive, 209.419 and 704.195, it is unlawful for any person to intercept or attempt to intercept any wire communication unless:

          (a) The interception or attempted interception is made with the prior consent of one of the parties to the communication; and

          (b) An emergency situation exists and it is impractical to obtain a court order as required by NRS 179.410 to 179.515, inclusive, before the interception, in which event the interception is subject to the requirements of subsection 3. If the application for ratification is denied, any use or disclosure of the information so intercepted is unlawful, and the person who made the interception shall notify the sender and the receiver of the communication that:

                 (1) The communication was intercepted; and

                 (2) Upon application to the court, ratification of the interception was denied.

          2.  This section does not apply to any person, or to the officers, employees or agents of any person, engaged in the business of providing service and facilities for wire communication where the interception or attempted interception is to construct, maintain, conduct or operate the service or facilities of that person.

          3.  Any person who has made an interception in an emergency situation as provided in paragraph (b) of subsection 1 shall, within 72 hours of the interception, make a written application to a justice of the Supreme Court or district judge for ratification of the interception. The interception must not be ratified unless the applicant shows that:

          (a) An emergency situation existed and it was impractical to obtain a court order before the interception; and

          (b) Except for the absence of a court order, the interception met the requirements of NRS 179.410 to 179.515, inclusive.

          4.  NRS 200.610 to 200.690, inclusive, do not prohibit the recording, and NRS 179.410 to 179.515, inclusive, do not prohibit the reception in evidence, of conversations on wire communications installed in the office of an official law enforcement or fire-fighting agency, or a public utility, if the equipment used for the recording is installed in a facility for wire communications or on a telephone with a number listed in a directory, on which emergency calls or requests by a person for response by the law enforcement or fire-fighting agency or public utility are likely to be received. In addition, those sections do not prohibit the recording or reception in evidence of conversations initiated by the law enforcement or fire-fighting agency or public utility from such a facility or telephone in connection with responding to the original call or request, if the agency or public utility informs the other party that the conversation is being recorded.

    Lane v. Allstate Inc. Co., 114 Nev. 1176, 969 P.2d 938 (1998)("Thus, single party interception must be judicially pre-approved or judicially ratified where an emergency exists to make pre-approval impractical. NRS 179.430 defines "intercept" as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device or of any sending or receiving equipment." The taping of a telephone conversation is clearly the aural acquisition of the contents of a wire communication through the use of a mechanical device or receiving equipment.").

  3. Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008)("Under Nevada law, there are two methods by which a communication may be lawfully intercepted, and thus, admissible. First, both parties to the communication can consent to the interception. Second, one party to the communication can consent to the interception if an emergency situation exists such that it is impractical to obtain a court order and judicial ratification is sought within 72 hours ... NRS 48.077 allows the admission of "the contents of any communication lawfully intercepted under the laws of the United States or of another jurisdiction before, on or after July 1, 1981, if the interception took place within that jurisdiction . . . in any action or proceeding in a court . . . of this State." Thus, if the interception was lawfully made in California, it is admissible in Nevada under NRS 48.077, even when the manner of interception would violate Nevada law had the interception taken place in Nevada.").
  4. NRS 200.690  Penalties.

          1.  A person who willfully and knowingly violates NRS 200.620 to 200.650, inclusive:

          (a) Shall be punished for a category D felony as provided in NRS 193.130.

          (b) Is liable to a person whose wire or oral communication is intercepted without his or her consent for:

                 (1) Actual damages or liquidated damages of $100 per day of violation but not less than $1,000, whichever is greater;

                 (2) Punitive damages; and

                 (3) His or her costs reasonably incurred in the action, including a reasonable attorney's fee,

    --> all of which may be recovered by civil action.

          2.  A good faith reliance by a public utility on a written request for interception by one party to a conversation is a complete defense to any civil or criminal action brought against the public utility on account of the interception.
  5. 18 U.S.C § 2510.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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