Reporter's Recording Guide
Last updated May 2020Compare
An individual who is a party to an in-person or telephone conversation or an electronic communication, or who has the consent of one of the parties to the conversation, can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act.
The state also prohibits recordings in violation of its hidden camera law.
Violators of Nebraska’s recording law and the hidden camera law are subject to criminal penalties, with civil penalties possible as well for violations of the recording law.Compare
Nebraska requires the consent of at least one party to record an in-person conversation if the person being recorded has a reasonable expectation of privacy. Neb. Rev. Stat. §§ 86-283, -290. Consent is inadequate if the recording is done for a criminal or tortious purpose. Neb. Rev. Stat. § 86-290.
However, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.Compare
Telephone and electronic communications
To record any telephone or electronic communication, an individual must be a party to that conversation or receive consent from at least one of the parties. Neb. Rev. Stat. § 86-290.
Because the provision of the statute dealing with electronic communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent from at least one party likewise is required to disclose the contents of text messages or emails sent between electronic devices. Neb. Rev. Stat. § 86-276.
However, consent is inadequate if the recording is done for a criminal or tortious purpose. Neb. Rev. Stat. § 86-290.Compare
It is a felony to secretly photograph or otherwise record the image of a person “in a state of undress” in a place where the person has a reasonable expectation of privacy. Neb. Rev. Stat. § 28-311.08. It is also a felony to secretly photograph or otherwise record the image of a person’s intimate body parts when the individual would not expect to be exposed to the public, regardless of whether it is in a public or private place. Id.
The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (e.g., filming conversations on public streets or a hotel lobby).Compare
Illegally recording an in-person or telephone conversation or electronic communication is generally a felony subject to up to two years in prison and a $10,000 fine, but the unlawful recording of certain types of statutorily designated communications by radio — such as the radio portion of a cellphone conversation — is only a misdemeanor offense, punishable by up to one year in prison and a $1,000 fine, if the recording is the violator’s first violation of the law. Neb. Rev. Stat. §§ 28-105, -106.
Making recordings or images in violations of the state’s hidden camera law is a felony subject to up to two years in prison and a $10,000 fine, while disclosures of those recordings or images range from a misdemeanor, subject up to one year in prison and a $1,000 fine, to a felony subject to up to 20 years in prison. Id.Compare
Anyone whose in-person, telephone or electronic communication has been recorded, disclosed or intentionally used in violation of the law can bring a civil suit for such relief as a judge deems appropriate, and secure damages, attorney’s fees and court costs. Neb. Rev. Stat. § 86-297. Damages may be the greater of actual damages, $100 for each day of violation or $10,000. Id.Compare
Disclosing or otherwise using the contents of an in-person, telephone or electronic communication while knowing or having reason to know it was recording illegally is a felony. Neb. Rev. Stat. § 86-290.
Under the hidden camera law, Nebraska also makes it a felony to disclose an image or video of a person’s intimate body parts taken without consent when the individual would not expect to be exposed to the public, regardless of whether it is in a public or private place. Neb. Rev. Stat. § 28-311.08.
Additionally, the hidden camera law makes it a misdemeanor to disclose an image or video of someone engaged in sexual conduct or of an individual’s intimate body parts without consent, if the person had a reasonable expectation that the image or video would remain private and if the disclosure “serves no legitimate purpose.” Id.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Eighth Circuit, which includes Nebraska, has not yet directly addressed the First Amendment right to record, although it has favorably cited the federal courts of appeal that have recognized a right to record police activity in public. Chestnut v. Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020).Compare