§ 86-290 — 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
(e) Having knowledge that an investigative or law enforcement officer has been authorized or has applied for authorization under sections 86-271 to 86-2,115 to intercept a wire, oral, or electronic communication, give notice or attempt to give notice of the possible interception to any person in order to obstruct, impede, or prevent such interception.
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)(a) It is not unlawful under sections 86-271 to 86-295 for an employer on his, her, or its business premises, for an operator of a switchboard, or for an officer, employee, or agent of any provider, the facilities of which are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his, her, or its employment while engaged in any activity which is a necessary incident to the rendition of his, her, or its service or to the protection of the rights or property of the carrier or provider of such communication services. Such employers and providers shall not utilize service observing or random monitoring except for mechanical, service quality, or performance control checks as long as reasonable notice of the policy of random monitoring is provided to their employees.
(b) It is not unlawful under sections 86-271 to 86-295 for a person acting under color of law to intercept a wire, electronic, or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
(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.
(d) It is not unlawful under sections 86-271 to 86-295 :
(i) To intercept or access an electronic communication made through an electronic communications system that is configured so that such electronic communication is readily accessible to the general public;
(ii) To intercept any radio communication which is transmitted:
(A) By any station for the use of the general public or that relates to ships, aircraft, vehicles, or persons in distress;
(B) By any governmental, law enforcement, emergency management, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;
(C) By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or
(D) By any marine or aeronautical communications system;
(iii) To intercept or receive, or to assist in the interception or receipt of:
(A) Any communications service offered over a cable system as provided in 47 U.S.C. 553, as such section existed on January 1, 2002; or
(B) Any satellite cable programming for private viewing as provided in 47 U.S.C. 605, as such section existed on January 1, 2002;
(iv) To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment to the extent necessary to identify the source of such interference; or
(v) For other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system if such communication is not scrambled or encrypted.
(e) It is not unlawful under sections 86-271 to 86-295 and 86-298 to 86-2,101 :
(i) To use a pen register or a trap-and-trace device; or
(ii) For a provider of an electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service from fraudulent, unlawful, or abusive use of such service.
(3)(a) Except as provided in subsection (1) of this section and subdivision (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication, other than one to such person or entity or an agent thereof, while in transmission on such service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.
(b) A person or entity providing an electronic communication service to the public may divulge the contents of any such communication:
(i) As otherwise authorized in subdivision (a) of this subsection or section 86-292 ;
(ii) With the lawful consent of the originator or any addressee or intended recipient of such communication;
(iii) To a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or
(iv) Which was inadvertently obtained by the provider and which appears to pertain to the commission of a crime if such divulgence is made to a law enforcement officer.
(4)(a) If the offense is a first offense under subsection (1) of this section and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain and the wire or electronic communication with respect to the offense under subsection (1) of this section is a radio communication that is not scrambled or encrypted, 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.
(b) Conduct, otherwise an offense under this subsection that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted: (i) To a broadcasting station for purposes of retransmission to the general public; or (ii) as an audio subcarrier intended for redistribution to facilities open to the public but not including data transmissions or telephone calls, is not an offense under this subsection unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain.
(5)(a) If the communication is: (i) A private satellite video communication that is not scrambled or encrypted and the conduct in violation of sections 86-271 to 86-295 is the private viewing of that communication and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or (ii) a radio communication that is transmitted on frequencies allocated for remote pickup broadcast stations under subpart D of 47 C.F.R. part 74, as such regulations existed on January 1, 2002, and that is not scrambled or encrypted and the conduct in violation of sections 86-271 to 86-295 is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the person who engages in such conduct shall be subject to suit by the state in a court of competent jurisdiction.
(b) In an action under this subsection:
(i) If the violation is a first offense by the person under subsection (1) of this section and such person has not been found liable in a civil action under section 86-297 , the state shall be entitled to appropriate injunctive relief; and
(ii) If the violation is a second or subsequent offense under subsection (1) of this section or such person has been found liable in any prior civil action under section 86-297 , the person shall be subject to a mandatory five-hundred-dollar civil fine.
(c) The court may use any means within its authority to enforce an injunction issued under this subsection and shall impose a civil fine of not less than five hundred dollars for each violation of such an injunction.

Legislative History

Source: Laws 1969, c. 854, § 2, p. 3211; Laws 1977, LB 39, § 329; Laws 1988, LB 899, § 2; Laws 1996, LB 43, § 52; R.S.1943, (1999), § 86-702; Laws 2002, LB 1105, § 152. Annotations: Message intercepted by one who was not a party to the communication, nor acting under color of law or with prior consent, is not admissible in evidence. White v. Longo, 190 Neb. 703, 212 N.W.2d 84 (1973).