Recording Law for Voiceprints & Biometric Data in Nebraska

Nebraska lets you record any conversation you’re part of without telling the other person first. The state’s wiretap law, found in Nebraska Revised Statutes §§ 86-271 through 86-297 (the Interception of Wire, Electronic, or Oral Communications Act), says it’s legal to intercept a wire, electronic, or oral communication if you’re a party to the conversation or have the prior consent of at least one party. This is called a “one-party consent” rule. The law defines “oral communication” as speech where the speaker has a reasonable expectation the words won’t be intercepted under circumstances justifying that expectation. That expectation only matters for in-person conversations; phone calls and electronic messages are covered based on how they’re sent, not whether anyone expects privacy. The penalty for breaking this rule can be a Class IV felony, though first offenses for intercepting unencrypted radio communications are reduced to a Class I misdemeanor (non-cellular) or Class III misdemeanor (cellular/paging). A private citizen’s one-party recording is unlawful if it’s intercepted for the purpose of committing any criminal or tortious act. Officers acting under color of law are exempt from the felony tier when they record their own encounters, and their recordings are governed by the same one-party-consent framework.

Nebraska’s 2024 Data Privacy Act, passed as LB1074 and codified at Neb. Rev. Stat. §§ 87-1101 to 87-1130, treats biometric data—including voiceprints—as “sensitive data.” The law says sensitive data can’t be processed without the person’s consent, or, in the case of processing the sensitive data of a known child, without processing that data in accordance with the federal Children’s Online Privacy Protection Act of 1998. A voiceprint counts as biometric data if it’s generated to uniquely identify someone, like a fingerprint or retina scan; photos or videos not generated for identification purposes are excluded. Just recording someone’s voice for transcription isn’t enough to trigger this rule. But if you’re capturing a voiceprint to identify the speaker—like a voice-ID feature—you need explicit consent first. The law also requires you to tell people in your privacy notice that you’re processing sensitive data like voiceprints. Under § 87-1113, the notice must disclose the categories of personal data processed, including any sensitive data.

Under the Data Privacy Act, you must get a person’s clear, affirmative consent before storing their voiceprint for identification. The law says consent must be a “clear and affirmative act” signifying a consumer’s freely given, specific, informed, and unambiguous agreement; general terms of service or passive actions like muting a video don’t count. If the person is under 18, you also have to follow federal children’s privacy rules under the Children’s Online Privacy Protection Act. The law doesn’t set a specific deadline for destroying voiceprints, unlike some other states. Instead, you just can’t keep them without consent. Enforcement is handled by the Attorney General, not private lawsuits. The Act exempts state agencies and political subdivisions, small businesses under federal Small Business Administration size standards, banks covered by the Gramm-Leach-Bliley Act, health care groups under HIPAA, nonprofits, and some utilities.

The Data Privacy Act doesn’t apply to everyone. It exempts state agencies and political subdivisions, small businesses under federal Small Business Administration size standards, banks covered by the Gramm-Leach-Bliley Act, health care groups under HIPAA, nonprofits, institutions of higher education, and electric and natural gas utilities. If your company fits one of these exemptions, the voiceprint consent rules don’t apply to you. But if you’re a larger business or don’t fit an exemption, you must follow the consent and notice rules for any voiceprints you collect. Enforcement is handled by the Attorney General, not private lawsuits.

The Attorney General can sue businesses that violate the Data Privacy Act. Before filing a lawsuit, the AG must give the company written notice at least 30 days before bringing the action and a chance to fix the problem; if the company cures the violation within 30 days and provides written proof of cure plus an express statement it will not recommit the violation, no lawsuit may be brought. If the company doesn’t fix it, the AG can seek a civil penalty of up to $7,500 per violation, ask a court to order the company to stop, and recover reasonable attorney’s fees and investigation expenses. The law explicitly bars private lawsuits, so only the state can enforce it. For wiretap violations under § 86-290, you could face criminal charges or a civil lawsuit from the person you recorded without consent, with damages tiers and a two-year statute of limitations under § 86-297. First offenses for intercepting unencrypted radio communications are reduced to a Class I misdemeanor (non-cellular) or Class III misdemeanor (cellular/paging), while other violations are Class IV felonies.

Nebraska’s wiretap law allows you to record conversations you’re part of, including interactions with police, as long as you’re a participant. Officers acting under color of law are also covered by the one-party rule when they record their own encounters. A civilian recording an on-duty officer as a bystander falls under the same one-party-consent rule unless the recording is silent video only (outside the statute entirely) or the officer’s public statements lack a justified expectation of non-interception. Federal courts in the Eighth Circuit have not definitively ruled that the First Amendment protects recording police in public, though the Eighth Circuit has recognized a clearly established right to observe police-citizen interactions at a distance without interfering and noted that every circuit to have considered the question has recognized a First Amendment right to record police activity in public. So a right to record police in Nebraska is well-supported but not yet definitively locked in by binding Eighth Circuit precedent. The safest approach is to record only when the interaction is clearly public and non-adversarial. If an officer tells you to stop or orders you away, pause recording and ask a lawyer before continuing.

Nebraska’s wiretap law only protects conversations where the speaker has a reasonable expectation the words won’t be intercepted under circumstances justifying that expectation. In a truly public setting—like a busy sidewalk or a public park—most courts would say there’s no such expectation because the speakers are not exhibiting an expectation that their communication is not subject to interception. But if the speakers are huddled in a corner, speaking quietly, or otherwise acting like they expect privacy, the law might still cover them. When in doubt, treat it as a gray area and get consent or don’t record. Nebraska has no published appellate decision establishing a bright-line public-space exception; the analysis rests on the statutory text alone. Wire and electronic communications are covered by the Act based solely on their transmission medium and contain no expectation-of-privacy qualifier, so the justified-expectation gate applies only to in-person oral communications.

Nebraska has no separate rule for recordings made inside a home, but courts are likely to say people have a higher expectation of privacy there. If you’re not part of the conversation and record it without consent, you could run into trouble under the wiretap law’s justified-expectation test for oral communications. The safest choice is to either get everyone’s okay or avoid recording at all in private homes unless you’re a participant. A bystander’s expectation of privacy is typically higher inside a private home, which could affect the analysis for a non-party recording someone else’s conversation there, though there is no separate home-specific offense or heightened penalty tier in the statute. Treat any oral conversation between people other than the wearer that occurs inside a private residence as presumptively carrying a justified expectation of privacy under §86-283; hold capture of such conversations at Tier 2 by default and permit full-tier capture only if the wearer is a direct participant in the conversation or all identifiable speakers in the room have given unambiguous, contemporaneous notice or consent to being recorded.

The Nebraska State Bar’s Ethics Advisory Opinion No. 06-07 adopts ABA Formal Opinion 01-422’s approach, allowing attorneys to record conversations without disclosure unless the recording is illegal, independently tortious or deceitful, or violates a specific court-defined privacy right. The opinion notes that while disclosure is the better practice, attorneys are not per se prohibited from ever recording conversations without express permission of all other parties. The opinion explicitly conditions its ethical conclusion on the recording being legal under Nebraska’s one-party-consent wiretap statute, quoting § 86-290(2)(c) directly. It also flags that if a court would determine an attorney’s undisclosed recording violates the Nebraska Constitutional Right to Privacy or some other law, such recording would also be unprofessional.