Reporter's Recording Guide
Last updated May 2020Compare
It is unlawful to record either an in-person or telephone conversation or disclose its contents without the consent of all parties. The violation goes from a felony to a misdemeanor offense, however, if the violator was a party to the communication or had one party’s prior consent to record it.
The state also prohibits the recording and disclosure of images or sound intercepted in violation of its hidden camera laws.
Both laws have criminal penalties, and violators of the recording law may be subject to civil lawsuits as well.Compare
It is unlawful to record people who have a reasonable expectation that their communications are not being recorded without first obtaining the consent of all parties in the conversation. N.H. Rev. Stat. Ann. §§ 570-A:1, 570-A:2.
A journalist does not need consent, however, to record conversations in public where there is no reasonable expectation of privacy.Compare
Telephone and electronic communications
It is unlawful to record any telephone call without first obtaining the consent of all participants. N.H. Rev. Stat. Ann. §§ 570-A:2.
Because the law applies to “any form of information,” oral or written, transmitted electronically, the consent of all parties likewise may be required to record the contents of text messages and emails. Id. However, the New Hampshire Supreme Court has held that senders of emails and online instant messages implicitly consent for those communications to be recorded because the recording of such a message is necessary for its recipient to read the communication. New Hampshire v. Lott, 879 A.2d 1167, 1172 (N.H. 2005).
More generally, the New Hampshire Supreme Court has held that a party effectively consented to the recording of a communication when the surrounding circumstances demonstrated that the party knew the communication was being recorded. New Hampshire v. Locke, 761 A.2d 376, 381 (N.H. 1999), superseded by statute on other grounds; see also Fischer v. Hooper, 732 A.2d 396, 405 (N.H. 1999) (finding that a jury should consider not only a defendant’s words but also her actions in determining whether she consented to the recording of her conversation).Compare
It is a misdemeanor to install or use any device to: 1) photograph or record images or sounds in a place where there is a reasonable expectation of privacy; 2) “up-skirt” or “down-blouse,” or secretly photograph or record a person, regardless of whether the person has a reasonable expectation of privacy, under or through his or her clothing; and 3) photograph or record “images, location, movement, or sounds” from outside a place in which there is a reasonable expectation of privacy if it would not ordinarily be audible or visible from outside the place without the device. N.H. Rev. Stat. Ann. § 644:9.
The law, however, does not criminalize the use of recording devices for other purposes in areas in which there is no reasonable expectation of privacy (e.g., filming conversations on public streets or a hotel lobby). The state Supreme Court found that a classroom was not a private place where a school custodian could reasonably expect to be safe from video surveillance. New Hampshire v. McLellan, 744 A.2d 611 (N.H. 1999).
Further, the U.S. Court of Appeals for the First Circuit, which includes New Hampshire, has found a First Amendment right to film police officers performing their duties in public, such as during traffic stops. Gericke v. Begin, 753 F.3d 1, 7 (1st Cir. 2014).Compare
A person who records an in-person or telephone conversation with the consent of only one party is guilty of a misdemeanor punishable by up to one year in prison and a $2,000 fine. N.H. Rev. Stat. Ann. §§ 570-A:11, 651:2. Otherwise, illegally recording or disclosing in-person or telephone conversations without the consent of all parties is a felony offense, subject to seven years in prison and a $4,000 fine. Id.Compare
Anyone whose in-person or telephone conversation has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of the violation or $1,000, and can recover punitive damages, attorney’s fees and court costs as well. N.H. Rev. Stat. Ann. § 570-A:11.Compare
Disclosing or using the contents of an in-person or telephone communication while knowing or having reason to know it was obtained through illegal recording is a felony. N.H. Rev. Stat. Ann. § 570-A:2.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the First Circuit, which includes New Hampshire, has held that there is a First Amendment right to record “government officials in public spaces.” Glik v. Cunniffe, 655 F.3d 78, 87 (1st Cir. 2011). This includes filming and audio recording “police carrying out their duties in public,” such as during traffic stops, so long as the officer cannot “reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.” Gericke v. Begin, 753 F.3d 1, 7–8 (1st Cir. 2014).Compare