Most everyone has seen a movie or television show where the police “bug” someone’s phone for information. However, “wiretapping” as it is also known, is not as simple as Hollywood makes it seem. In fact, ever the police must obtain a court order before they can institute a wiretap. The penalties for an illegal “wiretap” are severe and can include both fines and time in prison.
What is the legal definition of Wiretapping?
Wiretapping is defined in a series of 6 Statutes, NRS 200.610, 200.620, 200.630, 200.640, 200.650 and 200.690.
NRS 200.610 – Definitions.
As used in NRS 200.610 to 200690, inclusive:
- “Person” includes public officials and law enforcement officers of the State and of a county or municipality or other political subdivision of the State
- “Wire communication” means the transmission of writing, signs, signals, pictures and sounds of all kinds by wire, cable, or other similar connection between the points of origin and reception of such transmission, including all facilities and services incidental to such transmission, which facilities and services include, among other things, the receipt, forwarding and delivering of communications.
- “Radio communication” means the transmission of writing, signs, signals, pictures, and sounds of all kinds by radio or other wireless methods, including all facilities and services incidental to such transmission, which facilities and services include, among other things, the receipt, forwarding and delivering of communications. The term does not include the transmission of writing, signs, signals, pictures and sounds broadcast by amateurs or public or municipal agencies of the State of Nevada, or by others for the use of the general public.
NRS 200.620 – Interception and attempted interception of wire communication prohibited; exception.
- 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:
- The 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 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 the 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:
- The communication was intercepted; and
- Upon application to the court, ratification of the interception was denied.
- 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.
- 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:.
- An emergency situation existed and it was impractical to obtain a court order before the interception; and
- Except for the absence of a court order, the interception met the requirements of NRS 179.410 to 179. 515, inclusive.
- 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.
NRS 200.630 – Disclosure of existence, content or substance of wire or radio communication prohibited; exceptions.
- Except as otherwise provided in NRS 179.410 to 179.515, inclusive, and 704.195, a person shall not disclose the existence, content, substance, purport, effect or meaning of any wire or radio communication to any person unless authorized to do so by either the sender or receiver.
- This section does not apply to any person, or the officers, employees or agents of any person, engaged in furnishing service or facilities for wire or radio communication where the disclosure is made:
- For the purpose of construction, maintenance, conduct or operation of the service or facilities of such a person;
- To the intended receiver or his or her agent or attorney;
- In response to a subpoena issued by a court of competent jurisdiction; or
- On written demand of other lawful authority.
NRS 200.640 – Unauthorized connection with facilities prohibited.
Except as otherwise provided in NRS 179.410 to 179.515, inclusive, and 200.620, a person shall not make any connection, either physically or by induction, with the wire or radio communication facilities of any person engaged in the business of providing service and facilities for communication unless the connection is authorized by the person providing the service and facilities.
NRS200.650 – 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.
NRS 200.690 – Penalties
- A person who willfully and knowingly violates NRS 200.620 to 200.650, inclusive:
- Shall be punished for a category D felony as provided in NRS 193.130.
- Is liable to a person whose wire or oral communication is intercepted without his or her consent for:
- Actual damages or liquidate damages of $100 per day of violation but not less than $1,000, whichever is greater;
- Punitive damages; and
- His or her costs reasonably incurred in the action, including a reasonable attorney’s fee,
- All of which may be recovered by a civil action.
- 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.
So what does that mean?
Wiretapping is essentially the interception, recording, or disclosing of any communication or conversation made using electronic communication deice. In other words, it is illegal “tap into” messages being transmitted by:
- Phone call;
- Text message;
- Instant message;
- Skype, or other phone or video calling done through the internet;
- Wired transmission;
- Any other similar form of communication that can be “tapped” into.
Please Note: Radio transmissions are not generally considered capable of “wiretapping” because interception only takes the ability to tune in to the correct frequency, and does not require any “special” equipment.
What about when I call in to my power company and they tell me that the call is being recorded, can they do that?
Yes. That is not considered wiretapping. By telling you that they are recording the conversation, the company has invoked the “all party consent” exception. If all of the parties to a conversation know and consent to a conversation being recorded, then the recording does not violate “wiretapping” laws.
What about the police, doesn’t law enforcement need a court order to bug someone’s phone?
Technically, yes. In order to tap into someone’s phone or other communication device, law enforcement officers need to obtain a Court Order. However, there are some instances where it is impractical to obtain a court order before tapping into someone’s phone. In those situations, the law enforcement agency or agent must apply to a justice of the Nevada Supreme Court or district judge for ratification of the wiretapping. The application must be made within 72 hours of the intercepted communication and must include a showing that:
- The emergency situation existed such that the agency or agent was not able to practically obtain a court order prior to the interception of the communication; and
- Except for the absence of the Court Order, the wiretapping met all other necessary requirements to be lawful.
Is there anything else I should know?
Yes. Disclosure of the existence, content or substance of a wire or radio communication is also a crime. It is punished in exactly the same manner as the interception and/or recording of such wiretapping. In other words, if someone commits a wiretap, and then discloses the existence or content of the conversations they hear, they can be charged with both the wiretap, and also the disclosure of the existence or content of the wiretap, and will therefore double the possible penalties.
Also, although it is not actually “wiretapping,” using any type of listening device to listen intrude on someone’s privacy and listen to conversations taking place. Consequently, listening in on someone’s conversation through the use of a device other than a wiretap, say something that picks up sounds from a great distance, can still be charged as wiretapping.
What are the possible penalties?
A violation of any of the wiretapping crimes allows for the same penalties:
In the first place, any violation can be charged as a category D felony, which carries with it:
- Between 1 and 4 years in prison; and
- Possible fines up to $5,000.
Convictions for any type of “wiretapping” crime carries a category D felony charge, and also makes the convicted person liable for:
- Actual damages or liquidated damages equal to $1,000 or $100 per day of violation, whichever is greater;
- Punitive damages; and
- Any costs reasonably incurred in a civil action, including reasonable attorney’s fees.
Are there any Defenses?
Yes, of course there are. In fact, Wiretapping has a number of possible defenses.:
- Not willful or Knowing – Wiretapping is only illegal if the defendant’s actions were intentional. Accidentally listening or recording someone else’s phone or radio communication is not illegal. If your attorney can show that your actions were unintentional, then the charges against you should be dropped or dismissed.
- Consent – As noted above, Nevada is an “all-party consent” state. If you can show that all parties to the conversation had consented to the wiretapping, then there was no illegal actions, and the charges against you should be dropped or dismissed.
- Lawful purpose – Aside from Law Enforcement with a valid Court Order, there are other lawful purposes for wiretapping. Anyone working for a company who provides services for wire communication (phone, radio, etc.), can instigate a wiretap. However, the exception only applies if the wiretap is for purposes of:
- Construction of the service;
- Maintenance of the service; and/or
- Operation of the service;
What should I do if I’ve been charged with Wiretapping?
As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.