Can I legally record someone in Nevada without them knowing?
We often hear questions from clients about Nevada recording consent laws. Some clients wonder, “can you record someone without their consent in Nevada”, or “what are the Nevada recording consent laws”? Under Nevada law, it is illegal to secretly record an oral communication without the consent of at least one party. You are able to record in-person conversations as long as one party to the conversation consents. But all parties to a telephone conversation must consent to be recorded for the call to be lawfully taped. Under NRS 200.650, it is a category D felony to listen to or record a private conversation without the proper consent of the party or parties.
Note that it is also lawful to record conversations where the participants do not have a reasonable expectation of privacy whether or not the participants consent to it.
Is it legal to record in-person conversations in Nevada?
Another question we commonly hear is, “Is Nevada a one-party consent state”? Nevada is a one-party consent state in regard to in-person conversations.
[A] person shall not intrude upon the privacy of other persons by surreptitiously listening to, monitoring or recording … any private conversation engaged in by the other persons … unless authorized to do so by one of the persons engaging in the conversation.
Electronically eavesdropping on in-person, oral communications is legal as long as:
- at least one party to the conversation consents to the recording, or
- the conversation is not a private communication
This means that any party to a private conversation can legally record it because that party is consenting. But an eavesdropper cannot record a private conversation unless one of the actual participants consents.
Conversations are not private if they occur in public or other locations where there is no reasonable expectation of privacy.1 Therefore, it would probably not be an invasion of privacy to record the conversations of the general public on a bus, in a restaurant, or in a stadium. Our Las Vegas criminal defense attorneys can help if you’ve been charged with invasion of privacy by eavesdropping under NRS 200.650
Is it legal to record telephone conversations in Nevada?
In Nevada, at least one person to a private, in-person conversation must consent for someone else to listen in or record it. Nevada is considered a One-Party and All Party consent state with regard to wiretapping electronic communication. This means that a person can legally wiretap a phone call if all parties to the conversation consent to the recording. (It does not matter whether the callers were using a landline or a cell phone.) Nevada has a “one-party consent” law meaning a person can record conversations they are a part of without the other person’s consent. The Nevada Supreme Court has repeatedly interpreted the law as an all party consent law. The law is a bit confusing so it is best to avoid recording audio of someone without their permission.
In short, every party to the phone 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 rules for intercepting telephone calls. 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 (NRS 200.620).
What are the penalties for unlawfully recording a conversation?
Nevada punishes illegal recording — whether by wire or in person — as a category D felony. The sentence includes:
- one to four (1 – 4) years in Nevada State Prison, and
- possibly up to $5,000 in fines
In addition, the victim can sue the recorder and possibly recover:
- Actual damages or liquidated damages of $100 per day of violation but not less than $1,000 total (whichever is greater); and
- Punitive damages; and
- The victim’s costs reasonably incurred in the lawsuit, including reasonable attorneys’ fees4
What are the federal laws?
Wiretapping is a federal offense as well. However, Nevada state law is stricter than federal law under NRS 200.620.
Pursuant to 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
What are the criminal defenses for being charged with recording someone?
Four common defenses to Nevada charges of unauthorized listening are:
- At least one person consented to be listened to or recorded;
- The conversation was not private;
- The defendant did not act knowingly; or
- The defendant was falsely accused
3.1. At least one person consented to be listened to or recorded
Eavesdropping is legal as long as just one party to the conversation consents. It does not matter if all the other parties do not give consent.
As long as the defendant can show that at least one person consented, the NRS 200.650 charges should be dropped.
3.2. The conversation was not private
NRS 200.650 applies only to private conversations. People may lose their expectation of privacy in a public location. Examples may include on a bus or in a restaurant.
The prosecution must prove that the conversation was private. Otherwise, the charges should be dismissed.
3.3. The defendant did not act knowingly
NRS 200.650 is only a crime when the defendant willfully eavesdrops. Perhaps the defendant mistakenly left on her voice recorder.
The prosecution must prove the defendant behaved knowingly. Otherwise, the case should be dismissed.
3.4. The defendant was falsely accused
Sometimes people get falsely accused out of anger or revenge. Perhaps the accuser regrets consenting to being recorded. And now the accuser is blaming the defendant.
The prosecution has the burden to prove guilt beyond a reasonable doubt. If the defense attorney can show that the state has insufficient evidence to meet this burden, criminal charges should not stand.
Can I sue someone for recording me without consent?
Depending on the case, people who were illegally recorded may be able to sue the perpetrator on the grounds of invasion of privacy.
Contact an Experienced Nevada Criminal Defense Attorney Near You
If you or a loved one have been accused of a crime here in Las Vegas, or throughout the state of Nevada, contact us today for a 100% no-cost, no-obligation consultation.
They will hold your hand through the entire court process and fight for the best possible resolution for your case.
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