New Hampshire

Date: 
August 1, 2012

Summary of statute(s): It is unlawful to record either an in-person conversation or electronic communication or disclose its contents without the consent of all parties. But the violation is decreased from a felony to a misdemeanor offense if the violator was a party to the communication or had one party’s prior consent to record it. N.H. Rev. Stat. Ann. § 570-A:2 (2012).

In-person conversations: It is unlawful to record “any verbal communication uttered by a person who has a reasonable expectation that the communication is not subject to interception, under circumstances justifying such expectation” without first obtaining the consent of all parties engaged in the conversation. N.H. Rev. Stat. Ann. § 570-A:1. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: It is unlawful to record any telephone communication without first obtaining the consent of the participants to the communication. And because the statute applies to “any form of information,” oral or written, transmitted electronically, the consent of all parties likewise is required to disclose the contents of text messages sent between wireless devices. Id.

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 (N.H. 1999); see also Fischer v. Hooper, 732 A.2d 396 (N.H. 1999) (upholding the sufficiency of an instruction that the jury could consider, under the standard for implied consent, not only a defendant’s words but also her actions in determining whether she consented to the recording of her conversation), superseded by statute on other grounds. More recently, the state high court ruled that a criminal defendant consented to the recording of a real-time online conversation because he knew that the recording on the other party’s computer of the instant message was necessary for its recipient to read the communication. New Hampshire v. Lott, 879 A.2d 1167 (N.H. 2005).

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” originating in areas to which the public has access or there is no reasonable expectation of privacy that would not ordinarily be audible, visible or comprehensible in this public area. 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 (i.e., 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).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. N.H. Rev. Stat. Ann. § 570-A:2.

Civil suits: Anyone whose in-person conversation or electronic communication 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 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.

Disclosing recordings: Disclosing the contents of a wire communication obtained through illegal recording is a felony. N.H. Rev. Stat. Ann. § 570-A:2. Last December, Manchester, N.H., blogger and police-accountability activist Adam Mueller was indicted on three felony wiretapping charges after he allegedly publicly disclosed the contents of recorded telephone conversations he had without the other parties’ consent to the recording. A video Mueller allegedly posted on CopBlock.org, a website he co-founded that features videos and blogs about police activity, depicts his telephone interviews with a local police official and two school employees about an incident at the local high school but contains no indication that Mueller requested the parties’ consent to record the conversation and post it online. Mueller is scheduled to stand trial next month in Hillsborough County Superior Court and faces 21 years imprisonment if convicted of all three illegal-disclosure charges and sentenced to the maximum of seven years on each count. It does not appear that he faces any charges related solely to the actual recording rather than its public disclosure.