Recording Law for Phone & Video Calls in Nebraska

Nebraska lets you record a phone call or video call if you are part of the conversation. The state’s wiretap law says it is not unlawful to intercept a wire, electronic, or oral communication when you are a party to the call or have at least one party’s prior consent. The law is found in Nebraska Revised Statutes § 86-290(2)(c): “It is not unlawful 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.” This means you do not need everyone’s permission to record a call you are on, but you cannot record to commit a crime or a tort.

The Nebraska wiretap statute covers three types of communications: wire, electronic, and oral. A phone call is a “wire communication” because it uses a connection like a phone line or cell network. Video calls on Zoom, FaceTime, Teams, and similar services are “electronic communications” because they transmit images and sounds by radio, electromagnetic, or photoelectronic systems. Nebraska Revised Statutes § 86-289 defines a wire communication as any aural transfer made through facilities for transmitting communications by wire, cable, or similar connection, and § 86-276 defines an electronic communication as any transfer of signs, signals, writing, images, sounds, data, or intelligence transmitted by wire, radio, electromagnetic, photoelectronic, or photooptical systems. Recordings of silent video without audio are not covered by these definitions and are not restricted by the wiretap statute.

If you record only video without capturing any audio, Nebraska’s wiretap law does not apply. The law protects communications that involve an “aural transfer” or “oral communication,” and a silent video recording does not meet those definitions. Nebraska Revised Statutes § 86-289 requires a wire communication to include an aural transfer, and § 86-283 defines an oral communication as any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. Because a silent video does not involve an aural transfer or an oral communication as defined, it falls outside the statute’s reach.

Recording a call is against the law if you do it for a criminal or tortious purpose, even if you are a party to the call. Nebraska Revised Statutes § 86-290(2)(c) makes clear that one-party consent does not protect recordings made “for the purpose of committing any criminal or tortious act.” For example, using a secretly recorded call to blackmail someone or to defraud them would be illegal. The law also bars recording conversations where the speaker exhibited a justified expectation the conversation would not be intercepted, such as when people lower their voices or move away from others to speak privately.

Recording a call illegally in Nebraska can lead to criminal charges and civil lawsuits. Under Nebraska Revised Statutes § 86-290(1), unlawful interception is a Class IV felony, though first-offense violations involving unencrypted radio communications are reduced to a Class I misdemeanor for non-cellular communications or a Class III misdemeanor for cellular or paging communications. You can also be sued for damages under § 86-297, which allows a private right of action with a two-year statute of limitations. Damages can include actual damages, profits made from the recording, and attorney’s fees.

Nebraska has no statute that criminalizes recording on-duty police officers performing public duties, and federal courts in the Eighth Circuit have recognized a First Amendment right to observe police-citizen interactions in public. In Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), the court noted that every circuit to consider the question has held that a person has the right to record police activity in public, though it did not squarely decide the recording question itself. Nebraska’s one-party consent rule applies to civilians recording officers as bystanders, but silent video-only recordings are outside the wiretap statute entirely. Officers acting under color of law may record their own encounters under § 86-290(2)(b).

Nebraska’s wiretap law does not create a blanket exception for recordings made in public places. Instead, the law’s protection turns on whether a speaker exhibited a justified expectation that the communication would not be intercepted. Nebraska Revised Statutes § 86-283 defines an oral communication as any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. This means a conversation in a public park or on a busy sidewalk may still be protected if the speakers take steps to keep it private, such as lowering their voices or moving away from others. Conversely, a conversation in a private home generally carries a higher expectation of privacy, even for non-participants, and should be treated as presumptively protected under § 86-283 unless all speakers have given unambiguous consent.

Imagine you are a Nebraska employee on a Zoom call with your manager and two coworkers. You decide to record the meeting to keep a clear record of the discussion. Because you are part of the call, Nebraska’s one-party consent rule allows you to record without telling the others. If you later use the recording to harass a coworker, however, the recording could become illegal because it was made for a tortious purpose. If you record only the video without audio, Nebraska’s wiretap law does not apply at all.

Suppose you are in a public park and hear a heated argument between two strangers nearby. The speakers are shouting so loudly that others can easily hear them, and there is no sign they are trying to keep the conversation private. Under Nebraska’s wiretap law, this conversation may not qualify as an “oral communication” because the speakers did not exhibit a justified expectation against interception. A silent video recording of the scene would also fall outside the statute. However, if the speakers had lowered their voices or moved to a secluded corner, a court might find they had a justified expectation of privacy, making any recording potentially unlawful without consent.

You are visiting a friend’s home and notice a conversation happening in the living room between your friend and a guest. Even though you are not a participant, you consider recording the exchange. Nebraska’s wiretap statute does not expressly carve out a home-specific exception, but the setting typically raises a higher expectation of privacy for non-participants. Because the speakers are in a private residence and have not consented, recording their conversation would likely violate § 86-283’s justified-expectation standard unless you are a direct participant or have obtained consent.

Nebraska’s wiretap law includes a specific exception for persons acting under color of law who are parties to a communication or have one party’s consent. Nebraska Revised Statutes § 86-290(2)(b) provides that a person acting under color of law is not unlawful in intercepting a wire, electronic, or oral communication when they are a party to the communication or have one party’s consent. This exception allows on-duty officers to record their own encounters, such as with body-worn cameras, without violating the statute. It does not, however, create a special privacy shield for officers against citizen recording of public interactions.

Nebraska’s wiretap statute creates a private right of action for unlawful interceptions. Under Nebraska Revised Statutes § 86-297, any aggrieved person may bring a civil action for damages within two years of the violation. The statute allows recovery of actual damages, any profits made from the recording, and reasonable attorney’s fees. The law does not impose a separate filing requirement or pre-suit notice obligation, and the court may award damages based on the harm caused by the unlawful interception.

Federal courts in the Eighth Circuit have not squarely decided whether the First Amendment protects a right to record police, but they have recognized a clearly established right to observe police-citizen interactions in public. In Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), the court noted that every circuit to have considered the question has held that a person has the right to record police activity in public, though it did not itself squarely decide the recording question. This persuasive authority supports the view that recording police performing public duties is generally protected, but it is not binding precedent in the Eighth Circuit and should be applied cautiously.