August 1, 2012

Summary of statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act. A person also can lawfully record electronic communications that are readily accessible to the general public. Neb. Rev. Stat. § 86-290 (2011).

In-person conversations: The consent of at least one party to a conversation is required to record an “oral communication,” which is defined as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation but does not include any electronic communication.” Neb. Rev. Stat. § 86-283. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: The consent of at least one party to any telephone communication is required to record it. And because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Neb. Rev. Stat. § 86-276.

Hidden cameras: It is a felony to photograph or record 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. 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 (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony, but the unlawful recording of certain types of statutorily designated communications is only a misdemeanor offense if the recording is the violator’s first violation of the law. Neb. Rev. Stat. § 86-290.

Civil suits: Anyone whose wire, electronic or oral communication has been recorded or disclosed in violation of the law can bring a civil suit for such relief as a judge deems appropriate, including actual damages, attorney’s fees and court costs. Neb. Rev. Stat. § 86-297.

Disclosing recordings: Disclosing the contents of a wire, electronic or oral communication obtained through illegal recording is a felony. Neb. Rev. Stat. § 86-290.