Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

Nebraska

Current status

Nebraska law addressing unlawful interception of communications is based on the federal law and addresses wire, electronic and oral communication. Nebraska is thus a “one party consent” state. The unlawful intrusion statute addresses unlawful viewing and recording of other persons, but with a focus on nudity.

Impact of law

Nebraska is a Telecommunications statute that deems unlawful to intercept or record any communication without the consent of at least one party to the communication. This means that anyone can record his or her private communications without notifying the other parties to the communication. As the law specifically addresses oral, wire and electronic communications, the same provisions apply to electronic content such as email, text messages, chat content and other digital interactions.

References to Physical TSCM

Nebraska law, as based on the federal provisions, prohibits the illegal “interception of any wire, electronic, or oral communication”. Further definitions of terms lead to a very broad perspective on the law.

First, the law defines the term “intercept” as the acquisition of the contents of communication “through the use of any electronic, mechanical, or other device”.

Second “electronic, mechanical, or other device” is defined as “any device or apparatus which can be used to intercept” a wire, electronic, or oral communication.

We can thus assert that the law addresses illegal interception through the use of any device which can be used to intercept any wire, electronic, or oral communication. This is an all-inclusive perspective, that can literally address any means of wiretapping and available devices.

References to Cyber TSCM

As stated earlier, In the case of intercepting electronic communication, the law mentions the use of any electronic, mechanical, or other device as means for illegal acquisition of electronic communication content. From further definitions, we assert that such devices are considered to be “any device or apparatus which can be used to intercept” “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature” and that this description covers all cyber-surveillance tools.

Criminal implications

Any person who violates the interception law is guilty of a Class IV felony. However, for first offenses, if the communication is the radio portion of a cellular telephone communication, the offense is a Class III misdemeanor. Violations of the voyeurism law are either class I misdemeanors, or class IV felonies if subsequent violations.

Civil implications

Anyone whose communications have been unlawfully intercepted, can bring a civil suit not later than two years after discovering the violation. The plaintiff should be entitled to recover damages, as either the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation or statutory damages of at least $10,000.

Code excerpts

Neb. Rev. Stat. 86-290[1]. Unlawful acts; penalty.

(1) Except as otherwise specifically provided in sections 86-271 to 86-295, it is unlawful to:

(a) Intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire, electronic, or oral communication;

(b) Intentionally use, endeavor to use, or procure any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication or (ii) such device transmits communications by radio or interferes with the transmission of such communication;

(c) Intentionally disclose or endeavor to disclose to any other person the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic, or oral communication in violation of this subsection;

(d) Intentionally use or endeavor to use the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic, or oral communication in violation of this subsection; or

Except as provided in subdivisions (4)(a) and (5)(b) of this section, any person who violates this subsection is guilty of a Class IV felony.

(2) (c) It is not unlawful under sections 86-271 to 86-295 for a person not acting under color of law to intercept a wire, electronic, or oral communication when such person is a party to the communication or when one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any state.

(4)(a) If the offense is a first offense […], then:

(i) If the communication is not the radio portion of a cellular telephone communication, a public land mobile radio service communication, or a paging service communication and the conduct is not that described in subsection (5) of this section, the offense is a Class I misdemeanor; or

(ii) If the communication is the radio portion of a cellular telephone communication, a public land mobile radio service communication, or a paging service communication, the offense is a Class III misdemeanor.

Neb. Rev. Stat. 86-283[2]. Oral communication, defined.

Oral communication means 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. 86-276[3]. Electronic communication, defined.

Electronic communication means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system […]

Neb. Rev. Stat. 86-280[4]. Intercept, defined.

Intercept means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.

Neb. Rev. Stat. 86-275[5]. Electronic, mechanical, or other device, defined.

Electronic, mechanical, or other device means any device or apparatus which can be used to intercept a wire, electronic, or oral communication […]

Neb. Rev. Stat. 86-297[6]. Interception; civil action.

(1) Any person whose wire, electronic, or oral communication is intercepted, disclosed, or intentionally used in violation of sections 86-271 to 86-295 and 86-298 to 86-2,103 may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate.

(2) In an action under this section, appropriate relief includes:

(a) Such preliminary and other equitable or declaratory relief as may be appropriate;

(b) Damages under subsection (3) of this section; and

(c) Reasonable attorney’s fees and other litigation costs reasonably incurred.

(3)(b) In any other action under this section, the court may assess as damages whichever is the greater of:

(i) The sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or

(ii) Statutory damages of whichever is the greater of one hundred dollars a day for each day of violation or ten thousand dollars.

(5) A civil action under this section may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.

Neb. Rev. Stat. 28-311.08[7]. Unlawful intrusion;

(1) It shall be unlawful for any person to knowingly intrude upon any other person without his or her consent or knowledge in a place of solitude or seclusion.

(2) It shall be unlawful for any person to knowingly photograph, film, record, or live broadcast an image of the intimate area of any other person without his or her knowledge and consent when his or her intimate area would not be generally visible to the public regardless of whether such other person is located in a public or private place.

(3) For purposes of this section:

(b) Intrude means either the:

(i) Viewing of another person in a state of undress as it is occurring; or

(ii) Recording by video, photographic, digital, or other electronic means of another person in a state of undress; and

(c) Place of solitude or seclusion means a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, any facility, public or private, used as a restroom, tanning booth, locker room, shower room, fitting room, or dressing room.

(4)(a) Violation of this section involving an intrusion as defined in subdivision (3)(b)(i) of this section or violation under subsection (2) of this section is a Class I misdemeanor.

(b) Subsequent violation of this section involving an intrusion as defined in subdivision (3)(b)(i) of this section, subsequent violation under subsection (2) of this section, or violation of this section involving an intrusion as defined in subdivision (3)(b)(ii) of this section is a Class IV felony.

 

 

[1] Source: http://law.justia.com/codes/nebraska/2014/chapter-86/statute-86-290/

[2] Source: http://law.justia.com/codes/nebraska/2014/chapter-86/statute-86-283/

[3] Source: http://law.justia.com/codes/nebraska/2014/chapter-86/statute-86-276/

[4] Source: http://law.justia.com/codes/nebraska/2014/chapter-86/statute-86-280/

[5] Source: http://law.justia.com/codes/nebraska/2014/chapter-86/statute-86-275/

[6] Source: http://law.justia.com/codes/nebraska/2014/chapter-86/statute-86-297/

[7] Source: http://law.justia.com/codes/nebraska/2014/chapter-28/statute-28-311.08/