The Short Answer
In most states, whether someone can record a conversation is a fairly straightforward question. Thirty-nine states allow the recording of a conversation as long as at least one party to the conversation consents. Generally, consent of all parties is required for recording to be legal in the following states:
California
Connecticut
Delaware
Florida
Maryland
Massachusetts
New Hampshire
Pennsylvania
Vermont
Washington
Illinois
In Nevada, the unauthorized recording of a conversation constitutes a felony per NRS 200.690. The Nevada legislature separates the recording statutes into two categories: (1) recording of a conversation that occurs via wire communication (like a telephone call), and (2) recording of a private conversation that does not occur via wire communication (like an in-person conversation).
For reasons unexplained, Nevada places a higher burden on recording conversations that occur over the wires than ones that occur in person.
To record a wire communication, one of the following three conditions must be met: (1) both parties to the conversation consent, (2) there is a court order authorizing it, or (3) an emergency situation exists that makes getting a court order prior to the recording impractical, at least one party to the conversation consents to its recording, and a court order is sought immediately after the recording.
To record an in-person conversation, one of the following two conditions must be met: (1) at least one party to the conversation must give consent to its recording, or (2) the conversation must not be a private conversation, meaning the parties to the conversation are in public or context determines that the conversation takes place where there is no reasonable expectation of privacy.
You will always be in compliance if you get consent of all parties to the conversation, which really just means notice. The consent is inferred from the parties’ willingness to participate in the conversation once notice is given that it is being recorded.
In Nevada, if the conversation is a private, in-person conversation, it is legal to record as long as one party is aware of the recording. If it is a private, over-the-wires conversation (like via telephone), all parties must consent or it is illegal.
The Long Answer
To determine the intent of the legislature, we look first to the plain language of NRS 200.620 and NRS 200.650.
NRS 200.620 governs the interception of wire communications, and NRS 200.650 addresses the surreptitious intrusion of private conversations by a listening device (secret recordings).
Under the plain language of NRS 200.620, it is unlawful for a person to “intercept or attempt to intercept any wire communication.” “Wire communication” has a rather complicated definition, but it is apparently meant to encompass conversations via telephone, radio, internet, and the like.
There are some exceptions to when a wire communication may be intercepted, like during a law enforcement emergency with “prior consent of one of the parties to the communication” (after which a court order must be obtained); and for emergency calls, like a 9-1-1 call.
The wiretapping statute plainly states that interception of a wire communication is only permissible in emergency situations with “prior consent of one of the parties to the communication.” If it is not an emergency situation, either a court order or consent of all parties to the conversation must be first obtained.
NRS 200.650, on the other hand, makes it illegal to surreptitiously (i.e. secretly) record, monitor, or even listen to a private conversation of other people “unless authorized to do so by one of the persons engaging in the conversation.” This statute too, on its face, permits recording where only one person to the conversation consents.
Lane v. Allstate Ins. Co.
The Nevada Supreme Court in Lane v. Allstate Ins. Co. had the opportunity to review the applicability of both the recording of wire communications (NRS 200.620) and oral communications (NRS 200.650).
Mr. Lane was involved in a lawsuit with his former employer, Allstate Insurance. He wanted to present recorded phone calls to which he was a party as evidence against his employer. His employer cried foul, and the trial court made a finding of misconduct and dismissed his case.
On appeal, Mr. Lane argued that NRS 200.620 prohibits a third party from intercepting communication between two other people without consent of at least one person, but does not prohibit the tape-recording of one’s own telephone conversations.
Ultimately, one sentence in the wiretapping statute was the source of judicial consternation in the opinion. The provision made it illegal to intercept or attempt to intercept a wire communication if “[t]he interception or attempted interception is made with the prior consent of one of the parties to the communication…” and an emergency situation exists, after which a court order is sought.
On the one hand, the legislature made it clear that in emergency situations, consent of one party was enough authorization. So in a scenario where a third party wants to record the conversation of two other parties, they either needed a court order or an emergency for that recording to be valid. The most common scenario here would be where the police want to record a conversation between a consenting informant and a suspect.
But what about in nonemergency situations where one of the parties to the communication (the consenting party) is the same one who wants to record the conversation? Where there is no third party “intercepting” the communication, but only two parties, one of whom wants to record the conversation. Does that recording of one’s own conversation constitute interception? If it does, then the recording would be illegal. If it does not, then the statute would not apply.
Four of the five justices of the court wrote separate opinions delving into the applicability of the statute, including the meaning of the term “intercept,” and whether it was possible for one party in a two-party conversation to intercept his or her own conversation.
The plurality opinion—which constitutes the binding authority—relied on a statutory definition of “intercept” found in NRS 179.430: “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.” It concluded that under this definition, one could intercept his or her own telephone conversation, which act would be a felony under the statute.
It then compared NRS 200.620 to NRS 200.650 and concluded that for the recording of wire communications, all parties must consent in a nonemergency situation, regardless of whether a third-party or a party to the conversation is doing the recording. In so concluding, the court recognized that NRS 200.650 was different and provided an explicit allowance for surreptitious recordings of in-person, private conversations where there is “authoriz[ation] to do so by one of the persons engaging in the conversation.” Based on this exception, the court reasoned, “[i]f the legislature had wanted to create that limitation in NRS 200.620, it would have done so.”
At first glance, the court’s reasoning seems problematic because the legislature did create the the one-party exception in both NRS 200.620 and NRS 200.650. The exceptions in each of these statutes (which were last amended in 1989, nine years before the Supreme Court’s decision), are as follows:
NRS 200.620: “it is unlawful for any person to intercept or attempt to intercept any wire communication unless … [t]he interception or attempted interception is made with the prior consent of one of the parties to the communication” and “an emergency situation exists and it is impractical to obtai
n a court order ….”
NRS 200.650: “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.”
The difference, of course—a significant difference—is that the exception in the wiretapping statute only applies in emergency situations, whereas the exception in the oral recording statute applies to all conversations. The court thus concluded, “[i]t seems apparent that the legislature believed that intrusion upon Nevadans’ privacy by nonconsensual recording of telephone conversations was a greater intrusion than the recording of conversations in person.”
The court compared the federal wiretapping statute with the Nevada statute. The federal statute was amended in 1970 and allowed the intercepting of a communication “where such person is a party to a communication or where one of the parties to the communication has given prior consent to such interception ….” The Supreme Court interpreted the legislature’s omission of the provision allowing a recording “where such person is a party to a communication” to mean that the opposite was intended.
Although as a general rule, this method of discernment of legislative intent may be sound, where this phrase is redundant with “one of the parties to the communication has given prior consent to such interception,” the legislature’s omission can probably be better explained by economy of words rather than an intent to change the statute. The court’s reasoning in this regard seems flawed.
The last argument the court makes for support of its two-party interpretation relates to discussions the legislature had in 1985 before rejecting a bill that would legalize one-party consent for recording of telephone conversations by law enforcement officers. The court noted that the legislators at the time “assumed in their discussions that the present law prohibits all recording of one’s own telephone conversations.” This is a good argument, if true, but the court fails to quote any specific examples of these supposed legislative assumptions, making a sound analysis impossible.
The Supreme Court ultimately concluded that Mr. Lane’s case should not have been dismissed, but that the conversations would be inadmissible at trial due to the illegal means of their acquisition.
There were three dissenting opinions shared by four of the five justices. Three of the dissenting justices agreed with the result (reversing the dismissal) but disagreed with the plurality’s reasoning. Two in particular noted the illogical conclusion reached by the plurality.
One dissenting Justice, Justice Springer, drew a comparison between intercepting a phone conversation and intercepting a football:
Consequently, in order to hold that Mr. Lane engaged in criminal conduct, this court was forced to say (improvidently) that tape-recording one’s own conversation constitutes an interception. It does not. An “interception” requires a third person. Only a third person can intercept a communication, just as only a third person can intercept an attempted forward pass between a passer and a receiver. Where there are only two persons, there cannot be an interception no matter how hard we try to stretch the law and the facts. It is clear to me that Mr. Lane did not “intercept” anything and that he was not engaging in criminal conduct when he recorded his own telephone conversation.
As though he hadn’t already made his point, Justice Springer continued:
There can be no caviling about the meaning of the word “intercept.” The root of the word (capere, to capture or seize) tells us what the word is all about. One cannot “seize” something to which he has the right to possession. As mentioned above, no one would consider it possible for either a football passer or receiver to be a pass interceptor; obviously, it takes a third person to capture or seize the football from its intended, two-person, passer-receiver course. Mr. Lane did not have the capacity, as the participant in a two-way conversation, tointercept anything, any more than the receiver of a forward pass can be said to have “intercepted” the pass.
He poignantly concludes, “[t]he majority is mistaken in its interpretation of the word ‘intercept’ and wrong in holding that recording a telephone conversation in which the recorder is a participant is a criminal act. It is not a violation of NRS 200.620 to tape-record a telephone conversation in which one is a participant; therefore, I dissent.”
Justice Rose, also dissenting, made a less passionate but equally persuasive argument. He cited the 1957 version of the statute, which prohibited interception of wire or radio communication unless it was “authorized by both the sender and receiver.” He points out that when the statute was changed in 1973 to bring it in conformity with the federal wiretap statutes (a point made in the plurality opinion), the legislature changed the language to require “prior consent of one of the parties to the communication.” (Emphasis added.) Thus, he concluded, “as a result of this 1973 amendment, federal law’s single-party consent format was adopted in both NRS 200.620 and 200.650.”
Based on the results of this case, then, the Nevada Supreme Court interpreted NRS 200.620 to preclude the recording of a wire communication without the consent of both parties (except in certain emergency situations), whereas a private in-person communication only requires consent of one of the parties per NRS 200.650. To reach this conclusion, the court necessarily concluded that the word “intercept” applies not just to third parties external to the sender and receiver, but to the sender and receiver as well.
Mclellan v. State
The holding in Allstate and the meaning of NRS 200.620 was discussed in a unanimous decision in Mclellan v. State. The Supreme Court paraphrased the requirements of NRS 200.620: “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.”
Their summary of Allstate’s holding is somewhat misleading, however, because where they use the term “communication,” they should have used the term “wire communication” as the rule as it applies to non-wire communications is completely different.
Further confusion came in the way the Supreme Court framed the issue. Rather than limiting it to wire communications, which is all that is encompassed by the language of the statute, the Supreme Court considered whether the position advanced by the defendant was true: “all parties to a communication must consent to the interception of wire or oral communication for it to be lawful, and therefore admissible at trial.” (Emphasis added.)
The court did a disservice to Nevada by failing to clarify that the rules for wire communications are different than the rules for oral communications.
The problem with framing the question in this way—other than the fact that the court did not actually address the issue, deferring instead to the law of the state in which the communications were intercepted—was that the court, probably unintentionally, implied that NRS 200.620 applied to both wire and oral communications, thereby blurring the distinction between NRS 200.620 and NRS 200.650.
In spite of Mclellan’s confusing holding on a case that was not even about this particular Nevada statute (the subject of the opinion was a different Nevada statute—NRS 48.077, whi
ch governs the admissibility of recordings obtained legally in another jurisdiction in a manner that, if obtained in Nevada, would have been illegal) Allstate‘s holdings are arguably intact even after Mclellan, a more recent case. That is, wire communications require two-party consent absent an emergency and regardless of whether the recording is being done by a party to the conversation or a third-party not involved in the conversation, and oral communications require consent of only one party to a conversation.
[Note: this article was edited for accuracy on May 9, 2015 to reflect two false assumptions of the author. These assumptions were pointed out to me by one of my students, Lauren Pullen, for which I am deeply grateful.]
Zachariah B. Parry is an attorney and founding partner at the law firm H & P and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-879-9555.
References:
Lane v. Allstate Ins. Co., 114 Nev. 1176, 969 P.2d 938 (1998)
Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008)
NRS 200.620 (wire communications)
NRS 200.650 (in person communications)
NRS 200.690 (criminal and civil penalties)
NRS 179.430 (definition of “intercept”)
