The Dark Side of 21st Century Telecommunications in Nebraska


©2000 www.nebraskapen.org Last updated:11/15/00

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.

Oops! You're Next

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?

Inmates Fight Back

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 read that complaint here in the web site. 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.

Who is Defending Your Right to Privacy?

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.

What Can Be Done

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.


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References for Telecommunications Article

ADMINISTRATIVE PROCEDURE ACT

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;
(b) Communications required for the disposition of ex parte matters as authorized by law;
(c) Communications in a ratemaking or rulemaking proceeding; and
(d) Communications to which all parties have given consent; and

(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




BOSTEDOER V. DULING, 115 Neb at 564, 213 N.W.at 812

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)




FIRST TRUST CO. OF LINCOLN v. SMITH, 134 Neb. at 113-115, 277 N.W. at 777-778

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)




CONSTITUTION OF THE STATE OF NEBRASKA

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)




INDIVIDUAL RIGHTS

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)




PRIVILEGES

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)





OFFENSES AGAINST PROPERTY

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)





ADMINISTRATIVE DEPARTMENTS

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)




COMMUNICATIONS SYSTEMS

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)





DEPARTMENT OF CORRECTIONAL SERVICES - DUTIES

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)





INMATE RULES AND REGULATIONS

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)





TELECOMMUNICATIONS

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)





INTERCEPTED COMMUNICATIONS

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)





ARTICLE 7 INTERCEPTED COMMUNICATIONS

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)



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