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New Hampshire

Reporter's Recording Guide

Last updated May 2020

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Summary

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.

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In-person conversations

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.

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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 New Hampshire v. Locke, 761 A.2d 376, 381 (N.H. 1999), superseded by statute on other groundssee also Fischer v. Hooper, 732 A.2d 396, 405 (N.H. 1999) (finding that a jury should consider not only a defendant’s words but also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).

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Hidden cameras

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).

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Criminal penalties

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.

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Civil suits

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.

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Disclosing recordings

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.

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