Taping constitutes 'interception' of call, court finds

NEVADA–In early December, a divided state Supreme Court in Carson City held that Nevada’s wiretapping statute requires that an individual obtain the consent of all parties before taping a telephone conversation. The controversy in the 3-2 ruling turned on whether individuals who tape their own telephone calls are “intercepting” those calls.

Two high court justices joined Justice Bill Maupin in concluding that the language and the history of the statute expressed a clear legislative intent to outlaw the recording of a telephone conversation when only one participant has consented.

Justices Robert Rose and Charles Springer dissented. Each wrote separately to voice differing opinions on the meaning of the law. Springer asserted that because the statute outlaws the “interception” and recording of certain conversations, illegal wiretapping involves a third party’s intrusion into a communication. A person cannot illegally tape a conversation to which he is a party, and the court’s decision that such taping is an “interception” creates an “absurd result,” Springer argued.

The controversy over the meaning of the wiretapping law — which provides both civil and criminal penalties for illegal recording of conversations — arose in a case involving a former insurance company employee who sued the company over employment-related contract claims. The employee, Randy Lane, had offered tape recordings of more than 700 telephone conversations between himself and other persons in support of his claims.

A trial court in Reno concluded that the law required all-party consent for telephone conversation taping, thus making Lane’s tape recordings inadmissible as evidence. The court dismissed Lane’s claim against his former employer.

The majority reasoned that the absence of explicit wording in the statute allowing one-party consent, which appears in a separate Nevada statute covering the recording of in-person conversations as well as in the federal wiretapping statute that served as the model for Nevada’s wiretapping law, showed the legislature intended to require all parties to consent to telephone conversation tapings.

Springer, however, argued that “only a third person can intercept a communication, just as only a third person can intercept an attempted forward pass between a passer and a receiver. Where there are only two persons, there cannot be an interception no matter how hard we try to stretch the law and the facts.”

“I cannot believe that the legislature intended a meaning of the word þintercept’ that was entirely inconsistent with the word’s dictionary meaning or that would produce the absurd result of making all telephone conversations illegal,” Springer added.

Rose wrote separately to argue that “Nevada did indeed enact the single-party consent rule,” but concluded that because the court could not agree on the meaning of the wiretapping statute, it had to be considered ambiguous. Rose determined that based on the definition of “person” that appears in the statute, the law should only apply to public officials and law enforcement personnel, not to private citizens like Lane. As a result, Rose found “Lane did not violate any law in recording telephone conversations to which he was a party.”

The court allowed Lane’s claim to proceed but ordered that all evidence obtained via the recordings be excluded at trial. (Lane v. Allstate)