Wiretapping is a crime under both Nevada and federal law.
It's illegal in Nevada to listen to or record phone calls without permission from all the parties to the call. Even law enforcement can't wiretap phones unless they get a court order. Penalties include fines as well as prison. But a skilled Las Vegas criminal defense lawyer may be able to negotiate or litigate a favorable resolution and even a full dismissal of the charges.
This page summarizes the Nevada crime of wiretapping including its definition, possible defenses, and standard penalties. Keep reading to learn more.
The legal definition of "wiretapping" in Las Vegas, Nevada, is the intercepting, recording, or disclosing of contents of any wire communication such as a phone call, including cell calls and text messages. (Sharpe v. State, 131 Nev. Adv. Op. 32 (2015)) It's illegal to willfully and knowingly wiretap, but there are some exceptions. The most common one is if every party to the call gives their prior consent to the wiretapping.
Therefore Nevada is an "all-party consent" state because every party to a phone conversation needs to give permission in order for the call to be wiretapped legally. Note that the majority of states are "one-party consent" states and permit wiretapping with the knowledge of only one party to a phone call.
Law Enforcement exception
It's also legal for the police to wiretap phones to aid in certain criminal investigations. But this is an unpopular practice because it's widely considered an invasion of privacy. Therefore the police are required to follow strict procedural rules such as obtaining a court order before conducting the wiretap (unless there's an emergency situation making it impractical to do so).
There are other circumstances under which wiretapping may be done legally in Nevada. For example emergency calls such as to 911 are always recorded. And public utilities such as telecommunications companies may record phone calls as long as they inform the other party first.
It's also legal to wiretap a jail or prison inmate's phone conversations as long as there are signs near the telephones indicating that the calls are recorded. Note that an inmate's conversations with his/her attorney remain confidential.
Also, NRS 200.620 does not apply to the recording of interstate calls when the act of recording takes place outside Nevada. (Ditech Financial LLC v. Buckles, 133 Nev. Adv. Op. 64 (2017)).
Wiretapping is also a federal offense under 18 U.S.C § 2510. However federal law is less strict than NRS 200.620. Under federal law a party to a phone call may wiretap it without anyone else's permission. However if the person is not a party to the phone call, then he/she would need to get either a search warrant or every party's permission in order to wiretap the call legally.
There are several different strategies to fight allegations of illegal wiretapping in Las Vegas. Which ones would prove most effective always depends on the facts and specific circumstances of the case. But three of the most common defenses are:
- The wiretapping wasn't willful or knowing. Listening in, recording or disclosing the contents of a phone call is illegal only if the defendant's actions were deliberate. Recording a phone call by accident or through a misunderstanding is not criminal. So if a defense attorney can show that the defendant did not wiretap on purpose, the charges should be dropped.
- Everyone gave their consent. It's legal to record a phone call as long as every party to the call gave their consent. This consent does not have to be in writing or recorded. Therefore, it may be very hard for the D.A. to prove that the other parties did not give their consent. Unless the court believes there's proof beyond a reasonable doubt that the other parties never consented, the defendant is not criminally liable.
- The police wiretapped illegally. Sometimes the police break the law themselves when wiretapping a phone. Perhaps they didn't get a valid court order first. Or perhaps they exceeded their authority under the court order and wiretapped calls that should have remained confidential. In these cases a defense attorney would file a motion to suppress evidence in Nevada requesting the judge to disregard the illegally intercepted wiretaps. If the judge grants the motion to suppress evidence in Nevada, the D.A. may drop the case for lack of proof.
Violating Las Vegas wiretapping law under NRS 200.620 is a category D felony in Las Vegas. The sentence for a category D felony in Las Vegas includes:
- one to four years in Nevada State Prison, and
- maybe up to $5,000 in fines
In addition, the defendant is civilly liable to anyone he/she wiretapped without permission. A Las Vegas Court would order the following sentence:
- actual damages or liquidated damages of $100 per day of violation but not less than $1,000 (whichever is greater); and
- punitive damages; and
- the victim's costs reasonably incurred in the action, including a reasonable attorney's fee
The punishment for violating federal wiretap law includes up to five years in prison and $250,000 in fines. The defendant may also face civil penalties such as punitive damages and attorney's fees for the opposing party.
Arrested? Call . . .
If you've been accused of the Nevada offense of wiretapping under NRS 200.620, then phone our Las Vegas criminal defense attorneys at 702-DEFENSE (702-333-3673) for a free meeting on how they may be able to get your charges reduced or thrown out altogether. And if necessary they're ready to take your case to trial and fight for your innocence.