A three-judge panel of the Nevada Supreme Court1)This is a criminal appeal, and because Nevada has not established the Appellate Court yet, appeals are heard by three of the sitting Supreme Court Justices recently upheld a conviction of a methamphetamine dealer that appealed the legality of the plea bargain he agreed to stating that the state had no right under Nevada law to wiretap his communication done on cellular devises2)text messages/cell phone calls in this case.  Although the court comes to the expected conclusion, is it necessarily the most desired outcome?

 

What the wiretap statutes say

The statutes under discussion were codified in 1973.  The pertinent parts state as follows:

  NRS179.455  “Wire communication” defined.  

“Wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications. (Added to NRS by 1973, 1743)

NRS 179.460  Cases in which interception of wire or oral communications may be authorized.

      1.  The Attorney General or the district attorney of any county may apply to a Supreme Court justice or to a district judge in the county where the interception is to take place for an order authorizing the interception of wire or oral communications, and the judge may, in accordance with NRS 179.470 to 179.515, inclusive, grant an order authorizing the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when the interception may provide evidence of the commission of murder, kidnapping, robbery, extortion, bribery, escape of an offender in the custody of the the Department of Corrections, destruction of public property by explosives, a sexual offense against a child, sex trafficking, a violation of NRS 200.463, 200.464 or 200.465, trafficking in persons in violation of NRS 200.467 or 200.468 or the commission of any offense which is made a felony by the provisions of chapter 453 or 454 of NRS.

 

As you can read, these statutes seem pretty dated language-wise.  A lot of folks now have entire homes of electronic devises run completely without wires.  At least in my eye, the language used in the statutes is very broad, and that makes me uneasy.

 

What the Supreme Court opinion says regarding wiretaps

On appeal, Sharpe argues that Nevada’s failure to update its wiretap law to reflect federal wiretap law means that Nevada wiretap law does not give the proper statutory authorization for officers to intercept cellular telephone calls and text messages. Amicus Nevada Attorneys for Criminal Justice asserts that Nevada’s failure to update must be construed as the Legislature choosing to achieve a result different from federal wiretap law, i.e., no authorization for the interception of cellular telephone calls or text messages.3)pgs. 6-7

 

Here the court references the fact that the federal law has been updated differentiate between electronic and wire communication, while the Nevada law has not been updated since 1973.

 

We conclude that NRS 179.455’s definition of “wire communication” includes cellular telephone calls and text messages by its plain terms. The broad scope of “any communication” is obvious. We conclude that “any” indicates that both cellular telephone calls and text messages fall within the definition of “wire communication.”4)p. 8

Accordingly, we conclude that cellular telephone calls and text messages are “wire communication[s]” under NRS 179.455’s plain terms, because cellular telephone calls and text messages qualify as “any communication” and are “made in whole or in part. . . by the aid of wire, cable or other like connection between the point of origin and the point of reception.”5)p. 9

In essence, even though the phone in question is not used in conjunction with a wire, because the signal of the phone eventually reaches a tower or database that is connected by wires, then cell phones use is within the purview of the statute.  Given the practicalities, it is doubtful any other conclusion could have been reached.

 

Relevant Questions about privacy and a wiretap

If we were going to project how the court would adjudicate this issue beforehand, it is doubtful that the judges would choose to invalidate the actions of law enforcement, which would let this methamphetamine dealer out of jail on a technicality6)there does not seem to be any question as to if he committed the crime, but just the means that law enforcement used to catch him.  If the court were to overturn this conviction, the convictions of other felons convicted with evidence supplied by wiretaps on wireless communication would certainly come into question; that is not an outcome any reasonable person would want.  Accordingly, we are left with a false dilemma pitting the mass release of felons against the very broad construction of legislation written in 1973 that makes “wired” communication mean any communication.  I find this unfair and unfortunate.

I have to7)with a Ringo Starr-esq amount of “peace and love” question the means and the result here.  The court argues that a “plain reading” of the law would “obvious[ly]” include wireless phone calls and text messages.  How could a plain reading of a statute from 1973 include technology that was not invented yet?8)I do not mean to hammer on this point, but J. Gibbons makes a point on how “obvious” a plain reading of the law includes electronic communication.  If he were to say that the law is ambiguous, but rely on the intent of the legislators, I would take much less issue. There are good arguments to be made for a Constitution to be a “living, breathing document”9)recall the “penumbra” of rights alluded to in Roe v. Wade where the court found a right to privacy found in the shadow of a number of the Bill of Rights amendments. A Constitution is different than a statute.  For one, a statute is much easier to amend.  In addition, a Constitution establishes principles of its underwriters (subject to interpretation), a statute is supposed to clearly state what is and is not permissible, but we are speaking of statuary interpretation here. I understand the desire not to throw the whole criminal justice system into flux because of law in need of updating, but tolerating this type of ambiguity in the law may not be something we all will be comfortable with.

I think it is only fair to assume from this decision that any electronic communication is subject to NRS 179.460.  Does this include email? What about posts on social media? What about tablets and laptops? This is not the old days 10)ten years ago? where folks only made phone calls and sent/received text message from a cell phone.  Today many folks carry mobile devises that contain almost all of their personal information.  According the court, I have no reason to presume this information is not subject to the statute as well.  When the law was written in 1973, all one could do with a phone is speak and hear through it.  How could the legislators that wrote the original law have even guessed that electronic communication devises would eventually contain most of our lives’ private information?

I do not want this to come off as a scathing critique of J. Gibbons11)who authored the opinion, but I take issue more with legislative branch.  It is not fair to put the Supreme Court in a position where the Justices have to choose between invalidating countless criminal convictions, and propping up a dated surveillance law.  For too long now, legislatures (state and federal) have permitted the court system to settle difficult political questions that the elected representatives does not want any part of 12)see marriage, gay.  This is not how a constitutional republic is supposed to function.  The courts should only be evaluating the constitutional validity of laws; not picking up the figurative political slack left by the legislators.

If the Assembly and Senate desire that law enforcement be permitted to wiretap any and all communications made on electronic devises, so be it.  But the concept needs to be debated, amended, and codified by the people’s branch.  By remaining silent on such an important issue, the legislature is failing the people it is elected to represent.

Yet, it begs the question, if we the people directly elect the legislators, who is failing whom, really?

 

You can read J. Gibbons’ opinion here: Sharpe v. State

Footnotes   [ + ]

1. This is a criminal appeal, and because Nevada has not established the Appellate Court yet, appeals are heard by three of the sitting Supreme Court Justices
2. text messages/cell phone calls in this case
3. pgs. 6-7
4. p. 8
5. p. 9
6. there does not seem to be any question as to if he committed the crime, but just the means that law enforcement used to catch him
7. with a Ringo Starr-esq amount of “peace and love”
8. I do not mean to hammer on this point, but J. Gibbons makes a point on how “obvious” a plain reading of the law includes electronic communication.  If he were to say that the law is ambiguous, but rely on the intent of the legislators, I would take much less issue
9. recall the “penumbra” of rights alluded to in Roe v. Wade where the court found a right to privacy found in the shadow of a number of the Bill of Rights amendments. A Constitution is different than a statute.  For one, a statute is much easier to amend.  In addition, a Constitution establishes principles of its underwriters (subject to interpretation), a statute is supposed to clearly state what is and is not permissible
10. ten years ago?
11. who authored the opinion
12. see marriage, gay
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