August 1, 2012

Summary of statute(s): An individual who has the consent of at least one party to an in-person conversation can lawfully record it or disclose its contents, but the consent of all parties is required to record a telephone conversation. An exception may exist, however, for a telephone recording made with the prior consent of only one of the parties to the communication in an emergency situation in which it is impractical to obtain a court order. Nev. Rev. Stat. §§ 200.620, 200.650 (2011).

In-person conversations: It is unlawful to surreptitiously record “any private conversation engaged in by ... other persons” unless authorized to do so by one of the parties to the conversation. Because the statute explicitly applies only to surreptitiously recordings, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy. Nev. Rev. Stat. § 200.650.

Electronic communications: The consent of all parties to a telephone communication is required to record it. But because the prohibition is limited to “wire communications,” a journalist does not need consent to record conversations between two people using cell phones or other wireless devices, or to disclose the contents of text messages sent between wireless devices. Nev. Rev. Stat. § 200.620.

The Nevada Supreme Court held that the consent requirement is not met when an individual records his or her own telephone calls without the consent of all other participants, noting that “if the legislature had wanted to [authorize the recording of telephone conversations made with the consent of only one of the parties], it would have done so. It 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.” Lane v. Allstate Ins. Co., 969 P.2d 938 (Nev. 1998). That same court stated that the one-party-consent recording authorized in emergency situations applies mainly to law enforcement officers who proceed without a warrant. Id. at 939—40. Thus, it is unlikely to serve as a defense for journalists who record phone conversations without the required all-party consent.

Hidden cameras: It is a misdemeanor to photograph or record “the private area” of a person in a place where the person has a reasonable expectation of privacy, to use a hidden camera, regardless of whether a person is in a public or private place, to “up-skirt” or “down-blouse,” or secretly photograph or record that person under or through his or her clothing, and to disclose any images obtained by these means. Nev. Rev. Stat. § 200.604. 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 offense. Nev. Rev. Stat. § 200.690.

Civil suits: Anyone whose wire or oral communication has been recorded in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of violation or $1,000, and can recover punitive damages, attorney’s fees and court costs as well. Note that unlike most other states’ wiretap statutes, only the unlawful recording and not the unlawful disclosure may give rise to a civil cause of action. Id.

Disclosing recordings: Disclosing the contents of a wire communication without either the sender or receiver’s authority to do so, or an oral communication without the consent of at least one party to the conversation is a felony. Nev. Rev. Stat. §§ 200.630, 200.650, 200.690.