Nevada’s wiretapping laws have come to the forefront of the public
awareness after two unrelated stories broke recently that implicate
Nevada’s seemingly simple recording statute.
On June 17, 2014, Las Vegas law enforcers made headlines resulting
from an interagency incident that ended when the Las Vegas
Metropolitan Police executed a search warrant at the Las Vegas
Constable’s office. Acting on evidence that Constable John Bonaventura
had illegally recorded a telephone call with Clark County Commissioner
Tom Collins, the police seized phones, computers, and other electronic
recording equipment from the constable’s office. The police
investigation is ongoing.
Also recently in the news, Joe Morgan, an investigator for the Taxicab
Authority, is being prosecuted for his efforts to uncover the
corruption by recording a possibly incriminating telephone
conversation between two senior taxicab investigators. His intent was
purportedly to blow the whistle on a corrupt organization, but now he
finds himself in the district attorney’s crosshairs for illegally
recording a conversation.
Both of these cases raise questions about when it is legal in Nevada
to record a conversation.
There are two applicable statutes, NRS 200.620 and NRS 200.650. The
former statute addresses the interception of wire communications
(i.e., wiretapping) and makes it unlawful for a person to “intercept
or attempt to intercept” communications via telephone, radio,
Internet, and other electronic mediums. The latter governs the
surreptitious intrusion of private conversations by a listening device
(i.e., secretly recording in-person conversations) and makes it
illegal to secretly record, monitor, or listen to the private
conversations of others.
The willful violation of either of these statutes is a felony and
creates strict civil liabilities, including the allowance of punitive
However, both statutes create an exception, making interception or
recording of a conversation permissible — whether via electronic wire
or in person — if “authorized to do so by one of the persons engaging
in the conversation.” On its face, then, Nevada statute appears to be
similar to that of 38 other states — allowing a recording where at
least one person consents. That means that any person would be within
their rights to record their own conversation because as a
participant, they themselves can offer the required consent.
However, contrary to the legislature’s clear intent, the Nevada
Supreme Court, in a 1998 decision, interpreted the wiretapping statute
to require consent of all parties to the conversation for recording of
wire communications to be legal. The Supreme Court recognized,
however, that to record an in-person conversation, the consent of only
one participant was enough.
In spite of virtually identical language in the two statutes, the
Court nonsensically concluded, “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.” This notion prevailed despite
four justices disagreeing with the majority’s interpretation.
Such was the law in Nevada for ten years until the Supreme Court again
had an opportunity to discuss the applicability of both of these
statutes. Without even considering either the express language in the
statute regarding consent or the distinction the court drew a decade
earlier between wire and oral communications, the high court
unanimously concluded, “all parties to a communication must consent to
the interception of wire or oral communication for it to be lawful.”
(Emphasis added.) The court did not explain or acknowledge its subtle
expansion of the law. In the six years since this decision, police
have continued to enforce the stricter approach offered by the Supreme
Court, and there have been no significant attempts to challenge it.
Even though the legislature has the exclusive purview to establish
Nevada law, and Nevada courts should refrain from “interpreting” or
“construing” a statute’s meaning unless the law is unclear, the Nevada
Supreme Court eschewed constitutional safeguards.
Where recording of wire and oral communications is concerned, over the
course of a decade, the Supreme Court has ignored the plain meaning of
the statute, created an antithetical interpretation, and aligned
Nevada with the minority of states that require consent of all parties
to a conversation before recording is legally permissible.
Constable Bonaventura and Joe Morgan will undoubtedly mount a defense
against the criminal charges they face. They may also argue that their
actions were not unlawful by virtue of their own consent for the
respective recordings. However, because the Nevada Supreme Court has
impermissibly and inexplicably changed the requirements of the
applicable statutes, such defenses, though created by the legislative
branch, are likely to fall on deaf judicial ears.
Zachariah B. Parry is a civil litigation attorney and partner at his
firm, Pickard Parry Kolbe. He can be reached at firstname.lastname@example.org,
702-910-4300, or through his firm’s website at www.ppk-law.com or