| ©2000 www.nebraskapen.org | Last updated: 08/29/2020 |
You likely don't know it but the very same company that is famous for its dime a minute phone calls is conspiring with State of Nebraska employees to take away those individual liberties and freedoms established by our founding fathers. These liberties, including the freedom of association with the right to privacy are being denied to anyone who communicates with a loved one, or anyone who happens to be in the custody of the Nebraska Department of Correctional Services (NDCS).
21st Century computerized telecommunications contains the threat of destroying privacy in communications. In their quest for profits, 21st century carpetbaggers, like Sprint Communications, casually ignore your right to privacy. This theft of freedom is outlined in the ongoing lawsuit, McCroy et al. v. Sprint Communications Co., L.P. et al. The technology of the 21st century allows these carpetbaggers to violate these freedoms and rights with the push of a button. When it is that easy it is easy to make mistakes. NDCS has already admitted they (accidentally?) recorded some privileged phone calls between inmates and their lawyers.
If you think this loss of freedom does not affect you as a law-abiding citizen, think again. Everyone has a chance of being confined in jail or prison sometime. If not you, then someone you know or care about. Whether you agree to it or not, any communication you have with them is no longer private even though there are laws to protect it. Aren't families and friends of those confined still members of the public who retain all their liberties and freedoms? Certainly, they are.
But don't stop at the prison walls, because the carpetbaggers won't. What freedom or right to privacy will they (accidentally?) take away next? At some point in the future will all calls to government offices and officials be recorded and monitored just because it is a call to a "public" facility? Where does this new one-sided definition of privacy lead us?
If the authorities can say that a family member has given up their right to privacy because they talk with an inmate (who they claim has no right to privacy) what about the other conversations of that family member? Do the people who talk to them now give up their right to privacy too? Where does the chain of "necessary security measures" end?
The McCroy case directly challenges the lawlessness of
NDCS policies and practices for using the former telephone system
and the changes made with the installation of Sprint's new Inmate
Calling System (ICS). You can the full legal document here:
Nebraska Prison Telephone Lawsuit v4 (pdf)
The complaint might read like "legalese" so this article is designed to give you a simple
explanation of the complaint. The complaint points out many of
the statutory and constitutional privacy protections in
Nebraska.
The laws and Constitution of the State of Nebraska safeguard and guarantee many rights and freedoms that are not lost or taken away just because a person is in the custody of the state. For a detailed review of these retained rights and freedoms, see Bostedoer v. Duling, 115 Neb 557, 564, 213 N.W.809, 812 (1927), and Neb.Rev.Stat. §83-4,111(3)(Reissue 1994), and Article I, §26 of the Nebraska Constitution. NDCS and Sprint are oppressing and obstructing these freedoms retained by those in custody. In that process, NDCS and Sprint are violating those rights of their family members, friends in the community, and members of the legal and medical community as well. In return for ignoring the law and the constitution, NDCS gets millions of dollars in federal funds and Sprint gets a very profitable collect calling business. For a detailed historical review of unauthorized police powers and Nebraska law, see First Trust Co. of Lincoln v. Smith, 134 Neb 84, 113-115, 277 N.W. 762, 777-778 (1938); plus Neb.Rev.Stat. §§81-112 and 83-171 (Reissue 1994).
The new ICS mandates that an incarcerated person divulge to NDCS employees a list of names and addresses of those people the inmate may wish to place a collect call to. When NDCS approves the inmate's list of people, all calls to those people will be monitored by NDCS employees. These calls are recorded by a computerized system under the guise of "necessary security measures." These transgressions of freedom and privacy violate the 1st and 4th Amendments basic freedoms of association, access to petition and communicate with various governmental entities for the redress of grievances, the separation of church and state, and the prohibition of unreasonable search and seizure. In addition to these constitutional guarantees are numerous statutory protections also being violated by these false claims of "security." These statutes include Nebraska's Wire Intercept Act, Neb. Rev. Stat. §86-701 et seq., and The Administrative Procedures Act, Neb.Rev.Stat. §84-901 et seq. Other forms of privacy violations by NDCS include the attorney-client relation Neb. Rev. Stat. §27-503, the physician-patient relation Neb. Rev. Stat. §27-504, the husband-wife relation Neb.Rev.Stat. §27-505, the clergy-practitioner relation Neb.Rev.Stat. § 27-506, and the free flow of information to and from the media Neb.Rev.Stat. §20-146. All these basic freedoms and privileges are being violated on a daily basis by NDCS and Sprint. For further protections, see Neb.Rev.Stat. §§ 81-1120.27, 81-1120.28, 86-201, 86-202, 86-304 (pursuant to §28-519[2]), 86-702 (includes the personal privileges under§86-705[6]), 86-707, and 86-707.3.
As we head into the 21st century of high-tech devices and instantaneous communication, where do you think this chain of so-called "necessary security measures" ends? Will it end at your doorstep? Will these same measures soon become common place; so much so that what goes on in your home and on your private phone could be posted on the Internet to read? The steps NDCS and Sprint have already taken are a long way down the road toward this kind of "Big Brother" mentality. Who is defending you against this invasion of your right to privacy? The Attorney General isn't, he is helping NDCS violate these laws. What do you have when the state's highest legal authority condones and defends these practices rather than defending the constitutional rights of ordinary citizens as he is elected to do? When policemen break the law, then there is no law.
In this case the only course open is to fight fire with fire. When rights are taken away and violated the only way to regain them is in a court of law. Such a legal fight demands the best legal minds and representation that can be found. The plaintiffs in the lawsuit had been appointed counsel by the District Court but those attorneys withdrew. The inmate plaintiffs ask for the best and brightest members of the Bar to step forward and defend the Constitution and the right to privacy. We appeal to those of you who are skilled in the law because without your help the freedoms the law protects and guarantees may one day be a thing of the past. Please help with this vital legal defense if you can.
84-901. Terms defined. For
purposes of the Administrative Procedure Act:
(1) Agency shall mean each board, commission, department, officer, division, or other administrative office or unit of the state government authorized by law to make rules and regulations, except the Adjutant General's office as provided in Chapter 55, the courts including the Nebraska Workers' Compensation Court, the commission of Industrial relations, the Legislature, and the Secretary of State with respect to the duties imposed by the act;
(2) Rule or regulation shall mean any rule, regulation, or standard issued by an agency, including the amendment or repeal thereof whether with or without prior hearing and designed to implement, interpret, or make specific the law enforced or administered by it or governing its organization or procedure. Rule or regulation shall not include (a) rules and regulations concerning the internal management of the agency not affecting private right, private interest, or procedures available to the public or (b) permits, certificates of public convenience and necessity, franchises, rate orders, and rate tariffs and any rules of interpretation thereof. For purposes of the act, every rule and regulation which prescribes a penalty shall be presumed to have general applicability or to affect private rights and interests;
(3) Contested case shall mean a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing;
(4) Ex parte communication shall mean an oral or written communication which is not on the record in a contested case with respect to which reasonable notice to all parties was not given. Filing and notice of filing provided under subdivision (6)(d) of section 84-914 shall not be considered on the record and reasonable notice for purposes of this subdivision. Ex parte communication shall not include:
(a) Communications which do not pertain to the merits of a contested case;(5) Hearing officer shall mean the person or persons conducting a hearing, contested case, or other proceeding pursuant to the act, whether designated as the presiding officer, administrative law judge, or some other title designation. Back
Further, it must have been considered by the trial court, as evidenced by his ruling in permitting the record and judgment of the criminal trial to be introduced in evidence, as well as in sustaining the motions to dismiss, that, by reason of the plaintiff's having been convicted of a felony, he was deprived thereby and by reason thereof of his civil rights, and therefore was without authority to prosecute this action. In support of this holding of the court, section 2, art. 15, of the Constitution, and sections 1894, 9933, and 10262, Comp. St. 1922, are cited. It will be seen that section 2, art. 15, of the Constitution, simply deprives the convicted persons of the right to hold office. By Section 1894, (currently §32-1048), he is deprived of his right to vote. Section 9933 (currently §29-112) renders him incompetent to serve as an elector or juror, or to hold any office of honor, trust, or profit within this state, unless pardoned. Under section 10262, (was §29-2634 which was replaced with §83-1,118(5)), rights denied him by statute are restored when he is discharged through the board of pardons.
Considering the above constitutional provision and such sections of the statute, together with section 15, art. 1, of the Constitution, which provides that "no conviction shall work corruption of blood or forfeiture of estate," none thereof deprive such convicted person of other or different rights than those specifically named therein respectively. Thus, "corruption of blood" and "forfeiture of estate,' as imposed by the common law on persons attainted of felony, are unknown to the laws of this state and no consequences follow conviction and sentence by reason thereof, save and except such as are declared by Constitution or statute. As well said in 18 C.J. 914 § 6:
"In accordance with the modern policy of a more humane administration of the criminal law, the early doctrines of the common law in regard to the attainder, forfeiture, and corruption of blood of convicts have been either entirely swept away or modified by constitutional and statutory provisions."
As no conviction shall work "corruption of blood or forfeiture of estate," certainly none of such sections cited deprives this plaintiff, by reason of his conviction of a felony, of his civil right to his property and earnings, as existed prior to such conviction, and neither do they deny to him due process to our courts to protect his property or earnings. Civil death, as known to the common law, is without place in our jurisprudence.(Back)
The meaning of a Constitution is fixed when it is adopted and it is not different at any subsequent time when a court has occasion to pass upon it. The theory of our political system is that the ultimate sovereignty is in the people, from whom legitimate authority springs. Therefore, all power of government in this republic is vested in the people in their collective capacity, the electorate. They collectively, acting through the medium of Constitutions, create such governmental agencies, endow them with such powers and subject them to such limitations as in their wisdom will best promote the common good. With reference to the governmental agencies so created by them, the fundamental power to grant, the power to license, and the power to reserve, exercisable by the people, are coequal. A limitation, a reservation, and a grant, expressed in the term of a Constitution, are equally the exercise of the sovereign power. Nor can these fundamental principles be modified or in any manner controlled by the invocation by a state governmental agency of the doctrine of police power, if the power it seeks to exercise it has not in fact received, and is in any manner inconsistent with the express terms of the state Constitution. For section 26 of our Bill of Rights, in clear and unmistakable language, provides that, "all powers not herein delegated, remain with the people."
Indeed, the so-called state police power is not an entity. Its actual essentials are not of recent origin. It is not a power mysteriously nebulous, a separate or a distinct manifestation of governmental authority. It is not superior to State Constitutions so that it may properly be said that though an act of a governmental agency may be unconstitutional, still it may be justified under the police power, as though the same police power were a divinely mysterious governmental attribute of superior rank to the constitution itself. As a term of legal nomenclature, it appears that it was originally introduced by Chief Justice Marshall to identify a legal concept which was subsequently referred to by the Supreme Court of the United States as no more nor less than the powers of government inherent in every sovereignty to the extent of its dominions - the power to govern men and things. And so far as emergency by the exercise of police power authorizing what otherwise would be opposed to constitutional provisions, the answer of precedents is:
"Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency." (Back)
Art. 1.,Sec. 26 Powers retained by the people.
This enumeration of rights shall not be construed to impair or deny others, retained by the people, and all powers not herein delegated, remain with the people.(Back)
20-146. Procuring, gathering,
writing, editing, or disseminating news or other information; not
required to disclose to courts or public. No person engaged
in procuring, gathering, writing, editing, or disseminating news
or other information to the public shall be required to disclose
in any federal or state proceeding:
1) The source of any published or unpublished, broadcast or
nonbroadcast information obtained in the gathering, receiving, or
processing of information or any medium of communication to the
public; or
2) Any unpublished or nonbroadcast information obtained or
prepared in gathering, receiving, or processing of information
for any medium of communication to the public.
Source: Laws 1973, LB 380, §3
(Back)
20-147. Act, how cited. Sections 20-144 to 20-147 shall
be known and may be sited as the Free Flow of Information Act.
Source: Laws 1973, LB 380, §4.(Back)
27-503. Rule 503. Lawyer-client
privilege; definitions; general rule of privilege; who may claim
privilege; exceptions to the privilege.
1) As used in this rule:
(a) A client is a person, public officer, or corporation,
association, or other organization or entity, either public or
private, who is rendered professional legal services by a lawyer,
or who consults a lawyer with a view to obtaining professional
legal services from him.
(b) A lawyer is a person authorized, or reasonably believed by
the client to be authorized, to practice law in any state or
nation;
(c) A representative of the lawyer is one employed to assist the
lawyer in the rendition of professional legal services; and
(d) A communication is confidential if not intended to be
disclosed to third persons other than those to whom disclosure is
in furtherance of the rendition of professional legal services to
the client or those reasonably necessary for the transmission of
the communication.
(2) A client has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential
communication made for the purpose of facilitating the rendition
of professional legal services to the client
(a) between himself or his representative and his lawyer or his
lawyer's representative, or (b) between his lawyer and the
lawyer's representative, or (c) by him or his lawyer to a lawyer
representing another in a matter of common interest, or (d)
between representatives of the client or between the client and a
representative of the client, or (e) between lawyers representing
the client.
(3) The privilege may be claimed by the client, his guardian or
conservator, the personal representative of a deceased client, or
the successor, trustee, or similar representative of a
corporation, association or other organization, whether or not in
existence. The person who was the lawyer at the time of the
communication may claim the privilege but only on behalf of the
client. His authority to do so is presumed in the absence of
evidence to the contrary.
(4) There is no privilege under this rule;
(a) If the services of the lawyer are sought or obtained to
enable or aid anyone to commit or plan to commit what the client
knew or reasonably should have known to be a crime or fraud; or
(b) As to a communication relevant to an issue between parties
who claim through the same deceased client, regardless of whether
the claims are by testate or intestate succession or by inter
vivos transaction; or
(c) As to a communication relevant to an issue of breach of duty
by the lawyer to his client or by the client to his lawyer; or
(d) As to a communication relevant to an issue concerning an
attested document to which the lawyer is an attesting witness; or
(e) As to a communication relevant to a matter of common
interest between two or more clients if the communication was
made by any of them to a lawyer retained or consulted in common,
when offered in an action between any of the clients. (Back)
27-504. Rule 504. Physician-patient
privilege; professional counselor-client privilege; definitions;
general rule of privilege; who may claim privilege; exception to
the privilege.
(1) As used in this rule: (a) A patient is a person who
consults or is examined or interviewed by a physician for
purposes of diagnosis or treatment of his or her physical,
mental, or emotional condition;
(b) A physician is (i) a person authorized to practice medicine
in any state or nation or who is reasonably believed by the
patient so to be or (ii) a person licensed as a psychologist
under the laws of any state or nation who devotes all or a part
of his or her time to the practice of psychology;
(c) A client is a person who consults or is interviewed by a
professional counselor for professional counseling as defined in
section 71-1,310;
(d) A professional counselor is a person certified as a
professional counselor pursuant to sections 71-1,310, 71-1,324,
to 71-1,333; and
(e) A communication is confidential if not intended to be
disclosed to third persons other than those present to further
the interest of (i) the patient in the consultation, examination,
or interview, persons reasonably necessary for the transmission
of the communication, or persons who are participating in the
diagnosis and treatment under the direction of the physician,
including members of the patient's family, or (ii) the client
participating in professional counseling by a professional
counselor.
(2)(a) A patient has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential
communications made for the purposes of diagnosis or treatment of
his or her physical, mental, or emotional condition among himself
or herself, his or her physician, or persons who are
participating in the diagnosis or treatment under the direction
of the physician, including members of the patient's family.
(b) A client has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential
communications made during counseling between himself or herself,
his or her professional counselor, or persons who are
participating in the counseling under the direction of the
professional counselor, including members of the clients
family.
(3) The privilege may be claimed by the patient or client, by
his or her guardian or conservator, or by the personal
representative of a deceased patient or client. The person who
was the physician or professional counselor may claim the
privilege but only on behalf of the patient or client. His or her
authority so to do is presumed in the absence of evidence to the
contrary.
(4)(a) There is no privilege under this rule for communications
relevant to an issue in proceedings to hospitalize the patient
for physical, mental, or emotional illness if the physician, in
the course of diagnosis or treatment, has determined that the
patient is in need of hospitalization or if a professional
counselor deems it necessary to refer a client to determine if
there is need for hospitalization.
(b) If the judge orders an examination of the physical, mental,
or emotional condition of the patient, communications made in the
course thereof are not privileged under this rule with respect to
the particular purpose for which the examination is ordered
unless the judge orders otherwise.
(c) There is no privilege under this rule as to communications
relevant to an issue of the physical mental, or emotional
condition of the patient in any proceeding in which he or she
relies upon the condition as an element of his or her claim or
defense or, after the patient's death, in any proceeding in which
any party relies upon the condition as an element of his or her
claim or defense.
(d) There is no privilege under this rule in any judicial
proceedings under the Nebraska Juvenile Code regarding injuries
to children, incompetents, or disabled persons or in any criminal
prosecution involving injury to any such person or the willful
failure to report any such injuries.
(e) There is no privilege under this rule in any judicial
proceeding regarding unlawfully obtaining or attempting to
obtain (i) a controlled substance, (ii) a written or oral
prescription for a controlled substance, or (iii) the
administration of a controlled substance from a practitioner. For
purposes of this subdivision, the definitions found in section
28-401 shall apply.Back
27-505. Rule 505. Husband-wife
privilege, general rule of privilege; definitions; waiver;
criminal cases; exceptions to the privilege.
(1) Neither husband nor wife can be examined in any case as to
any confidential communication made by one to the other while
married, nor shall they after the marriage relation ceases be
permitted to reveal in testimony any such communication while the
marriage subsisted except as otherwise provided by law. This
privilege may be waived only with the consent of both spouses.
After the death of one, it may be waived by the survivor. For
purposes of this section (a) a confidential communication shall
mean a communication which is made privately by any persons to
his or her spouse with no intention that such communication be
disclosed to any other person and (b) communication shall include
any action on the part of a spouse if the action reasonably
appears to have been intended to communicate a message from one
spouse to the other. (2) During the existence of the marriage, a
husband and wife can in no criminal case be a witness against the
other. This privilege may be waived only with the consent of both
spouses.
(3) These privileges cannot be claimed: (a) In any criminal case
where the crime charged is a crime of violence, bigamy, incest,
or any crime committed by one against the person or property of
the other or of a child of either or in any criminal prosecution
against the husband for wife or child abandonment; (b) In any
case brought by either husband or wife against a third person
relating to their marriage relationship or the interruption of or
interference with such relationship; or (c) In any case brought
by either husband or wife against the other for divorce or
annulment of the marriage or for support.(Back)
27-506. Rule 506. Communications to
clergyman; definitions; general rule of privilege; who may claim
privilege.
(1) As used in this rule: (a) A clergyman is a minister, priest,
rabbi, or other similar functionary of a religious organization,
or an individual reasonably believed so to be by the person
consulting him; and (b) A communication is confidential if
made privately and not intended for further disclosure except to
other persons present in furtherance of the purpose of the
communication. (2) A person has a privilege to refuse to disclose
and to prevent another from disclosing a confidential
communication by the person to a clergyman in his professional
character as spiritual advisor.
(3) The privilege may be claimed by the person, by his guardian
or conservator, or by his personal representative if he is
deceased. The clergyman may claim the privilege on behalf of the
person. His authority so to do is presumed in the absence of
evidence to the contrary.(Back)
28-519. Criminal mischief;
penalty.
(1) A person commits criminal mischief if he or she: (a) Damages
property of another intentionally or recklessly; or (b)
Intentionally tempers with property of another so as to endanger
person or property; or (c) Intentionally or maliciously causes
another to suffer pecuniary loss by deception or threat.
(2) Criminal mischief is a Class IV felony if the actor
intentionally causes pecuniary loss in excess of three
hundred dollars, or a substantial interruption or impairment
of public communication, transportation, supply of water, gas
or power, or other public service.
(3) Criminal mischief is a Class II misdemeanor if the actor
intentionally causes pecuniary loss in excess of one hundred
dollars.
(4) Criminal mischief is a Class III misdemeanor if the actor
intentionally or recklessly causes pecuniary loss in an amount of
one hundred dollars or less, or if his or her action results in
no pecuniary loss.(Back)
81-112. Department heads; rules and regulations; power to make. The head of each department is empowered to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its employees and clerks, the distribution and performance of its business, and the custody, use and preservation of the records, papers, books, documents and property pertaining thereto.(Back)
81-1120.27. Telecommunications
system; uses; member of legislature; long-distance calls; how
made.
(1) The facilities of the state's telecommunications systems
are provided for the conduct of state business. In addition,
the state's telecommunication systems may be used by state
employees and officials for local calls and long-distance calls
to children at home, teachers, doctors, day care centers, and
baby-sitters, to family members to inform them of unexpected
schedule changes, and for other essential personal business. The
use of the state's telecommunications systems for essential
personal business shall be kept to a minimum and shall not
interfere with the conduct of state business. Essential personal
long-distance calls shall be either collect, charged to a third
party, non-state number, or charged to a personal credit card.
(2) A member of the Legislature, while engaged in legislative
business, may make personal long-distance calls on the state
telecommunications system or by using his or her state credit
card. At the end of every month upon the member's receipt of his
or her long-distance call record, the personal long-distance
calls shall be designated by the member and the member billed for
such calls. Reimbursement to the state for such personal
long-distance calls by the member shall be made within thirty
days from the date of the designation.
(3) A member of the Legislature, at his or her own sole
discretion, may designate any long-distance call as sensitive or
confidential in nature, any long-distance call record used in an
audit shall contain only the date the long-distance call was made
and the cost of the call. In no case shall the person conducting
the audit have access to a long-distance call number designated
as sensitive or confidential in nature by the member without the
written consent of the member. No calls made to or by a
member of the Legislature which are sensitive or confidential in
nature shall be required to be disclosed except that such calls
shall be so designated by the member, and only the amount of the
call and such designation shall be made available to a person
conducting an audit. For purposes of this subsection,
sensitive or confidential in nature shall mean that either the
member of the Legislature or the caller would reasonably expect
that the nature of the content of the call would not be disclosed
to another person without the consent of the member or the
caller. (Back)
81-1120.28. Communication system; not to function as news agency; information; privileged; exceptions. The communications system and the director shall not function as a public information or news agency. Communications transmitted on or through the communications system shall be the privileged information of the sender and receiver, provided, that this shall not prohibit the sender or receiver from releasing to others or to the public such information, and provided further, that in the event of an emergency, the Governor shall have the power to direct release of such information as he deems in the best interests of the state.(Back)
83-171. Department of Correctional
Services; created; duties. There is hereby created a
Department of Correctional Services which shall:
(1) Maintain and administer facilities requires for the custody,
control, correctional treatment, and rehabilitation of persons
committed to the department and for the safekeeping of such other
persons as may be remanded to the department in accordance
with law.
(2) Supervise persons committed to the department on parole and
administer parole services in the facilities and in the
community; and
(3) Develop policies and programs for the correctional treatment
and rehabilitation of persons committed to the department. (Back)
83-4,111. Rules and regulations;
purpose; contents; rights and privileges of inmates.
(1) The department shall adopt and promulgate rules and
regulations to establish criteria for justifiably and reasonably
determining which rights and privileges an inmate forfeits upon
commitment and which rights and privileges an inmate retains
(2) Such rules and regulations shall include, but not be limited
to, criteria concerning (a) disciplinary procedures and a code of
offenses for which discipline may be imposed, (b) disciplinary
segregation, (c) grievance procedures, (d) good-time credit, (e)
mail and visiting privileges, and (f) rehabilitation
opportunities.
(3) The rules and regulations adopted pursuant to sections
83-4,109 to 83-4,123 shall in no manner deprive an inmate of any
rights and privileges to which he or she is entitled under other
provisions of law or under policies adopted in a correctional
facility.(Back)
86-201. Telephone companies; booths; appliances. It shall be the duty of every person, firm, association or corporation in this state, engaged in the business of receiving messages to be forwarded by telephone, to provide every sending or receiving station with such appliances, booths or devices that messages may be sent or received without being overheard by persons near the person sending or receiving.(Back)
86-202. Booths; appliances; violation; penalty. Any person, firm, association or corporation failing to comply with the provisions of section 86-201 shall be deemed guilty of a Class III misdemeanor for each station not properly equipped and for each week's delay.(Back)
86-304. Public service companies; poles, wires, service; interference; penalty. Any person or persons who shall willfully and maliciously break, injure, destroy or otherwise interfere with the poles, wires or fixtures of any telegraph, telephone or railroad company or electric light and power company in this state, or who shall willfully and purposely interrupt or interfere with the transmission of telegraph or telephone messages or the transmission of light, heat and power in this state, shall be subject to the action and penalty prescribed in section 28-519.(Back)
86-701. Terms, defined. As used
in sections 86-701 to 86-707.15, unless the context otherwise
requires:
(1) Aggrieved person shall mean a person who was a party to any
intercepted wire, electronic, or oral communication or a person
against whom the interception was directed;
(2) Aural transfer shall mean a transfer containing the human
voice at any point between and including the point of origin and
the point of reception;
(3) Contents, when used with respect to any wire, electronic, or
oral communication, shall include any information concerning the
substance, purport, or meaning of that communication;
(4) Electronic, mechanical, or other device shall mean any device
or apparatus which can be used to intercept a wire, electronic,
or oral communication other than (a) any telephone or telegraph
instrument, equipment, or facility, or any component thereof, (i)
furnished to the subscriber or user by a provider in the ordinary
course of its business and being used by the subscriber or user
in the ordinary course of its business or furnished by such
subscriber or user for connection to the facilities of such
service and used by the subscriber or user in the ordinary course
of its business or by an investigative or law enforcement officer
in the ordinary course of his or her duties or (b) a hearing aid
or similar device being used to correct subnormal hearing to not
better than normal.
(5) Electronic communication shall mean 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 photooptical system but
shall not include: (a) The radio portion of a cordless telephone
communication that is transmitted between the cordless telephone
and the base unit. (b) Any wire or oral communication; (c) Any
communication made through a tone-only mobile paging device; or
(d) Any communication from a mobile tracking device as defined in
section 86-707.08;
(6) Electronic communication service shall mean any service which
provides to users thereof the ability to send or receive wire or
electronic communications;
(7) Electronic communication system shall mean any wire, radio,
electromagnetic, photooptical, or photoelectronic facilities for
the transmission of electronic communications and any computer
facilities or related electronic equipment for the electronic
storage of such communications;
(8) Electronic storage shall mean:
(a) Any temporary, intermediate storage of a wire or
electronic communication incidental to the electronic
transmission thereof; and (b) Any storage of such communication
by an electronic communication service for purposes of backup
protection of such communications;
(9) Intercept shall mean 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;
(10) Investigative or law enforcement officer shall mean a law
enforcement officer as defined in section
81-1401 and shall include the Attorney General and his or
her deputies or assistants, a county attorney and his or her
deputies, and agents of the United States Federal Bureau of
Investigation, Drug Enforcement Administration, Marshals Service,
Secret Service, Bureau of Alcohol, Tobacco, and Firearms,
Treasury Department, Customs Service, Justice Department, and
Internal Revenue Service;
(11) Mobile phone communication shall mean a radio communication
that is transmitted on frequencies allocated under the rules of
the Federal Communications Commission.
(12) Oral communication shall mean any oral communication
uttered by a person exhibiting an expectation that such
communication is not subject to interception under circumstances
justifying such expectation but shall not include any
electronic communication;
(13) Pen register shall mean a device which records or decodes
electronic or other impulses which identify the numbers dialed or
otherwise transmitted on the telephone line to which such device
is attached but shall not include any device used by a provider
or customer of an electronic communication service for billing or
recording as an incident to billing for communications services
provided by such provider or any device used by a provider or
customer of an electronic communication service for cost
accounting or other like purposes in the ordinary course of its
business;
(14) Provider shall mean any person who provides an electronic
communication service and who has authorized access to or
possession or control of the facilities or equipment necessary to
implement the order to intercept a wire or electronic
communication or the order to install a pen register or a
trap-and-trace device;
(15) Readily accessible to the general public shall mean, with
respect to a radio communication, that such communication is not:
(a) Scrambled or encrypted; (b) Transmitted using modulation
techniques the essential parameters of which have been withheld
from the public with the intention of preserving the privacy of
such communication; (c) Carried on a subcarrier or other signal
subsidiary to a radio transmission; (d) Transmitted over an
electronic communications system by a provider unless the
communication is a tone-only paging system communication; or (e)
Transmitted on frequencies allocated under part 25, subpart D, E,
or F of part 74, or part 94 of the rules of the Federal
Communications Commission unless, in the case of a communication
transmitted on a frequency allocated under part 74 that is not
exclusively allocated to broadcast auxiliary services, the
communication is a two-way voice communication by radio;
(16) Trap-and-trace device shall mean a device which captures the
incoming electronic or other impulses which identify the
originating number of an instrument or device from which a wire
or electronic communication was transmitted;
(17) User shall mean any person or entity who: (a) Uses an
electronic communication service; and (b) Is duly authorized by
the provider of such service to engage in such use; and
(18) Wire communication shall mean any aural transfer made in
while or in part through the use of facilities for the
transmission of communications by the aid of wire, cable, or
other like connection, including the use of such connection in a
switching station, between the point of origin and the point of
reception furnished or operated by any person engaged in
providing or operating such facilities for the transmission of
communications. Wire communication shall include any electronic
storage of such communication but shall not include the radio
portion of a cordless telephone communication that is transmitted
between the cordless telephone handset and the base unit.(Back)
86-702. Unlawful acts; penalty.
(1) Except as otherwise specifically provided in sections
86-701 to 86-707, it shall be 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, 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 86-701 to 86-712 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 shall be guilty
of a Class IV felony.
(2)(a) It shall not be unlawful under sections 86-701 for an
employer on his, her, or its business premises, for an operator
of a switch-board, 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 shall not be unlawful under
sections 86-701 to 86-707 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 shall not be unlawful under sections 86-701 to 86-707 for
a person not acting under color of law to intercept a wire,
electronic, or oral communication when such a person is a party
to the communication or when one of the parties to the
communication is intercepted for the purpose of committing any
criminal or tortuous act in violation of the Constitution or laws
of the United States or of any state....
86-705. Interception of wire,
electronic, or oral communications; application;proof;
order; contents; time limit; reports to judge; recording; custody of
tape or wire; inspections; contents of communication; evidence,
when; motion to suppress or denial of application; appeal.
(6) No order entered under this section may authorize or approve
the interception of any wire, electronic, or oral communication
for any period longer than is necessary to achieve the objective
of the authorization not in any event longer than thirty days.
Extensions of an order may be granted but only upon application
for an extension made in accordance with subsection (1) of this
section and the court making the findings required by subsection
(3) of this section. The period of extension shall be no longer
than the authorizing judge deems necessary to achieve the
purposes for which it was granted and in no event for longer than
thirty days. Every order and extension thereof shall
contain a provision that the authorization to intercept shall be
executed as soon a practicable, shall be conducted in such a
way as to avoid and prevent interception of confidential
communications to or from persons of the class described in
sections 20-146 and 27-503 to 27-506 unless there exists
probable cause to believe such persons have committed, are
committing, or are conspiring to commit
offenses specified in section 86-703, shall be conducted
in such a way as to minimize the interception of communications
not otherwise subject to interception under sections 86-701 to
86-707, and shall terminate upon attainment of the authorized
objective or in any event in thirty days Upon a showing of
good cause as set forth in the application, in the event the
intercepted communication is in a foreign language and an expert
in that foreign language is not reasonably available during the
interception period, minimization may be accomplished as soon as
practicable after such interception.(Back)
86-707. Violations; penalty. It shall be unlawful for any person to (1) intentionally and without lawful authority cut, break, tap, or make connection with any telegraph or telephone line, wire, cable, or instrument or electronic, mechanical, or other device or read or copy in any unauthorized manner any message, communication, or report passing over it, on this state, (2) intentionally and without lawful authority prevent, obstruct, or delay, by any means or contrivance whatsoever, the sending, transmission, conveyance, or delivery in this state of any authorized message, communication, or report by or through any telegraph or telephone company doing business in this state, (3) aid, agree with, employ, or cause to be done, any of the acts described in subdivisions (1) and (2) of this section, or (4) occupy, use a line, or knowingly permit another to occupy, use a line, room, table, establishment, or apparatus to unlawfully do or cause to be done any of the acts described in this section. Any person who violates this section shall be guilty of a Class IV felony.(Back)
86-707.03. Pen register;
trap-and-trace device; restrictions on use.
(1) Except as provided in this section, no person may install or
use a pen register or trap-and-trace device without first
obtaining a court order under section 86-707.05. Nothing in
sections 86-701.14 shall be construed to prohibit an emergency
operator from conducting a trap or trace of a phone number during
an emergency.
(2) The prohibition of subsection (1) of this section shall not
apply with respect to the use of a pen register or a
trap-and-trace device by a provider: (a) Relating to the
operation, maintenance, and testing of an electronic
communication service, to the protection of the rights or
property of such provider or to the protection of users of
that service from abuse of service or unlawful use of
service; (b) 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 such service from fraudulent, unlawful, or abusive use of
service, or (c) When the consent of the user of such
service has been obtained.
(3) Whoever knowingly violates subsection (1) of this section
shall be guilty of a Class I misdemeanor.(Back)
81-1401. Terms, defined. For
purposes of sections 81-1401 to 81-1414, unless the context
otherwise requires:
(1) Commission means the Nebraska Commission on Law Enforcement
and Criminal Justice:
(2) Council means the Nebraska Police Standards Advisory Council;
(3) Handgun means any firearm with a barrel less than sixteen
inches in length or any firearm designed to be held and fired by
the use of a single hand;
(4) Law enforcement agency means the police department or the
town marshal in incorporated municipalities, the office of
sheriff in unincorporated areas, and the Nebraska State Patrol;
(5)(a) Law enforcement officer means any person who is
responsible for the prevention or detection of crime or the
enforcement of the penal, traffic, or highway laws of the state
or any political subdivision of the state for more than one
hundred hours per year and is authorized by law to make arrests
and includes, but is not limited to:
(i) A full-time or part-time member of the Nebraska State Patrol;
(ii) A county sheriff;
(iii) A full-time or part-time employee of a county sheriff's
office;
(iv) A full-time or part-time employee of a municipal or village
police agency; or
(v) A full-time employee of an organized and paid fire
department of any city of the metropolitan class who is an
authorized arson investigator and whose duties consist of
determining the cause, origin, and circumstances of fires or
explosions while on duty in the course of an investigation: but
(b) Law enforcement officer does not include employees of the
Department of Correctional Services, probation officers under the
Nebraska Probation System or appointed under section 43-2,123,
parole officers appointed by the Parole Administrator, employees
of the Department of Property Assessment and Taxation under
section 77-704, or employees of the Department of Revenue under
section 77-366;
(6) Director means the director of the Nebraska Law Enforcement
Training Center; and
(7) Training center means the Nebraska Law Enforcement Training
Center. (Back)
86-703. Interception of wire, electronic, or oral communications; district court; authorize; application; order; procedure. The Attorney General or any county attorney may make application to any district court of this state for an order authorizing or approving the interception of wire, electronic, or oral communications, and such court may grant, subject to sections 86-701 to 86-707, an order authorizing or approving the interception of wire, electronic, or oral communications by law enforcement officers having responsibility for the investigation of the offense as to which application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, robbery, bribery, extortion, dealing in narcotic or other dangerous drugs, or any conspiracy to commit any such offenses.
At the same time a county attorney first makes application to the district court for an initial order authorizing or approving the interception of wire, electronic or oral communication, the county attorney shall submit the application to the Attorney General or his or her designated deputy or assistant. Within twenty-four hours of receipt by the office of the Attorney General of the application from the county attorney, the Attorney General or his or her designated deputy or assistant, as the case may be, shall state to the district court where the order is sought his or her recommendation as to whether the order should be granted. The court shall not issue the order until it has received the recommendation or until seventy-two hours after receipt of the application from the county attorney, whichever is sooner, unless the court finds exigent circumstances existing which necessitate the immediate issuance of the order. The court may issue the order and disregard the recommendation of the Attorney General or his or her designated deputy or assistant. (Back)