Author Topic: Recording requirements within NH (and elsewhere).  (Read 1681 times)

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Offline wallacenolen

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Recording requirements within NH (and elsewhere).
« on: July 10, 2011, 08:54:56 AM »
On of the best sources on the subject of CAN I RECORD can be found at:

http://www.rcfp.org/taping

The have broken down every state in the nation which can be found at:

http://www.rcfp.org/taping/states.html

Under New Hampshire @ http://www.rcfp.org/taping/states/newhampshire.html   it states:

A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C.

 

   

          "New Hampshire"

          "It is a felony to intercept or disclose the contents of any telecommunication or oral communication without the consent of all parties. N.H. Rev. Stat. Ann. § 570-A:2-I.
          It is punishable by imprisonment of one to seven years. N.H. Rev. Stat. Ann § 625:9. However, it is only a misdemeanor if a party to a communication, or anyone who
          has the consent of only one of the parties, intercepts a telecommunication or oral communication. N.H. Rev. Stat. Ann § 570-A:2-I. Misdemeanors are punishable by
          imprisonment up to one year. N.H. Rev. Stat. Ann § 625:9."

          "Any person whose telecommunication or oral communication is intercepted or disclosed has a civil cause of action against any person who unlawfully obtains such
          communication and is entitled to recover: actual damages at a rate of $100 per day or $1,000, whichever is greater; punitive damages; and reasonable attorney
          fees or other litigation costs. N.H. Rev. Stat. Ann § 570-A:11."

          "In addition, it is a violation of privacy to install or use any device for the purpose of observing, photographing, or recording in or outside any private place. N.H.
          Rev. Stat. Ann § 644:9-I. The state’s highest court has held that a classroom was not a private place where a school custodian could reasonably expect to be
          safe from video surveillance. State v. McLellan, 744 A.2d 611, 615 (N.H. 1999)."



The actual text of the NH state statute can be found here: http://www.gencourt.state.nh.us/rsa/html/lviii/570-a/570-a-2.htm

It states:

TITLE LVIII
PUBLIC JUSTICE
CHAPTER 570-A
WIRETAPPING AND EAVESDROPPING
Section 570-A:2
    570-A:2 Interception and Disclosure of Telecommunication or Oral Communications Prohibited. –
    I. A person is guilty of a class B felony if, except as otherwise specifically provided in this chapter or without the consent of all parties to the communication, the person:
       (a) Wilfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any telecommunication or oral communication;
       (b) Wilfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
          (1) Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in telecommunication, or
          (2) Such device transmits communications by radio, or interferes with the transmission of such communication, or
          (3) Such use or endeavor to use (A) takes place on premises of any business or other commercial establishment, or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment; or
       (c) Wilfully discloses, or endeavors to disclose, to any other person the contents of any telecommunication or oral communication, knowing or having reason to know that the information was obtained through the interception of a telecommunication or oral communication in violation of this paragraph; or
       (d) Willfully uses, or endeavors to use, the contents of any telecommunication or oral communication, knowing or having reason to know that the information was obtained through the interception of a telecommunication or oral communication in violation of this paragraph.
    I-a. A person is guilty of a misdemeanor if, except as otherwise specifically provided in this chapter or without consent of all parties to the communication, the person knowingly intercepts a telecommunication or oral communication when the person is a party to the communication or with the prior consent of one of the parties to the communication, but without the approval required by RSA 570-A:2, II(d).
    II. It shall not be unlawful under this chapter for:
       (a) Any operator of a switchboard, or an officer, employee, or agent of any communication common carrier whose facilities are used in the transmission of a telecommunication, to intercept, disclose, or use that communication in the normal course of employment while engaged in any activity which is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of such communication; provided, however, that said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
       (b) An officer, employee, or agent of any communication common carrier to provide information, facilities, or technical assistance to an investigative or law enforcement officer who, pursuant to this chapter, is authorized to intercept a telecommunication or oral communication.
       (c) Any law enforcement officer, when conducting investigations of or making arrests for offenses enumerated in this chapter, to carry on the person an electronic, mechanical or other device which intercepts oral communications and transmits such communications by radio.
       (d) An investigative or law enforcement officer in the ordinary course of the officer's duties pertaining to the conducting of investigations of organized crime, offenses enumerated in this chapter, solid waste violations under RSA 149-M:9, I and II, or harassing or obscene telephone calls to intercept a telecommunication 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; provided, however, that no such interception shall be made unless the attorney general, the deputy attorney general, or an assistant attorney general designated by the attorney general determines that there exists a reasonable suspicion that evidence of criminal conduct will be derived from such interception. Oral authorization for the interception may be given and a written memorandum of said determination and its basis shall be made within 72 hours thereafter. The memorandum shall be kept on file in the office of the attorney general.
       (e) Where the offense under investigation is defined in RSA 318-B, the attorney general to delegate authority under RSA 570-A:2, II(d) to a county attorney. The county attorney may exercise this authority only in the county where the county attorney serves. The attorney general shall, prior to the effective date of this subparagraph, adopt specific guidelines under which the county attorney may give authorization for such interceptions. Any county attorney may further delegate authority under this section to any assistant county attorney in the county attorney's office.
       (f) An officer, employee, or agent of the Federal Communications Commission, in the normal course of employment and in discharge of the monitoring responsibilities exercised by the commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a telecommunication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.
       (g) Any law enforcement officer, when conducting investigations of or making arrests for offenses enumerated in this chapter, to carry on the person an electronic, mechanical or other device which intercepts oral communications and transmits such communications by radio.
       (h) Any municipal, county, or state fire or police department, the division of emergency services and communications as created by RSA 21-P:48-a, including the bureau of emergency communications as defined by RSA 106-H, or any independently owned emergency service, and their employees in the course of their employment, when receiving or responding to emergency calls, to intercept, record, disclose or use a telecommunication, while engaged in any activity which is a necessary incident to the rendition of service or the protection of life or property.
       (i) Any public utility regulated by the public utilities commission, and its employees in the course of employment, when receiving central dispatch calls or calls for emergency service, or when responding to central dispatch calls or calls for emergency service, to intercept, record, disclose or use a telecommunication, while engaged in any activity which is a necessary incident to the rendition of service, or the protection of life and property. Any public utility recording calls pursuant to this subparagraph shall provide an automatic tone warning device which automatically produces a distinct signal that is repeated at regular intervals during the conversation. The public utilities commission may adopt rules relative to the recording of emergency calls under RSA 541-A.
       (j) A uniformed law enforcement officer to make an audio recording in conjunction with a video recording of a routine stop performed in the ordinary course of patrol duties on any way as defined by RSA 259:125, provided that the officer shall first give notification of such recording to the party to the communication.
       (k)(1) The owner or operator of a school bus, as defined in RSA 259:96, to make an audio recording in conjunction with a video recording of the interior of the school bus while students are being transported to and from school or school activities, provided that the school board authorizes audio recording, the school district provides notification of such recording to the parents and students as part of the district's pupil safety and violence prevention policy required under RSA 193-F, and there is a sign informing the occupants of such recording prominently displayed on the school bus.
          (2) Prior to any audio recording, the school board shall hold a public hearing to determine whether audio recording should be authorized in school buses, and if authorized, the school board shall establish an administrative procedure to address the length of time which the recording is retained, ownership of the recording, limitations on who may listen to the recording, and provisions for erasing or destroying the recording. Such administrative procedure shall permit the parents or legal guardian of any student against whom a recording is being used as part of a disciplinary proceeding to listen to the recording. In no event, however, shall the recording be retained for longer than 10 school days unless the school district determines that the recording is relevant to a disciplinary proceeding, or a court orders that it be retained for a longer period of time. An audio recording shall only be reviewed if there has been a report of an incident or a complaint relative to conduct on the school bus, and only that portion of the audio recording which is relevant to the incident or complaint shall be reviewed.
       (l) A law enforcement officer in the ordinary course of the officer's duties using any device capable of making an audio or video recording, or both, and which is attached to and used in conjunction with a TASER or other similar electroshock device. Any person who is the subject of such recording shall be informed of the existence of the audio or video recording, or both, and shall be provided with a copy of such recording at his or her request.

Source. 1969, 403:1. 1975, 385:2. 1977, 588:16. 1979, 282:1. 1985, 263:2. 1988, 25:3. 1990, 96:1; 191:2. 1992, 174:2. 1995, 195:1; 280:10, I, II, III. 1996, 251:24, eff. Aug. 9, 1996; 274:1-5, eff. Jan. 1, 1997. 2002, 257:11, eff. July 1, 2002. 2003, 319:129, eff. Sept. 4, 2003. 2004, 171:21, eff. July 24, 2004. 2006, 69:1, eff. June 24, 2006. 2008, 139:1, eff. Aug. 5, 2008; 361:11, eff. July 11, 2008. 2010, 155:4, eff. July 1, 2010.


I am not an attorney but I do not believe that this statute could hold up if properly challenged.   Suppose a news reporter/cameraman wanted to "talk" to an official, person charged with a crime, etc, on camera.  The standard procedure, with camera rolling is that the reporter would approach their "target" and say something like: "Sir/Madam would you care to comment on ....".    Well, if I read the above correctly, that would mean that the reporter, cameraman and ultimately the news organization they work for would be guilty of a misdemeanor, because they haven't received permission for their "target" to record.   I am sure that if one were to "set up" a news organization like a large television station where they were found to be in violation then demand the arrest and criminal prosecution of those involved, I would venture a guess that not only would that news organization challenge the statute, but also the world-wide news media would get behind them and demand that the statute be struck down as being unconstitutional.

Has anyone tried to go to organizations such as but not limited to the American Civil Liberties Union's New Hampshire chapter?   I see all kinds of possibilities that might get this statute overturned.  On the other hand I feel that if one person participating in a conversation is aware that he/she is recording -- whether that person himself/herself is doing the recording or whether or not that person has given permission to a third party -- like having a radio transmitter transmit the audio or audio/video to a remote location, then I think given those parameters there shouldn't be any violation.

I live in Vermont.   Under this organization Vermont url which can be found at:

http://www.rcfp.org/taping/states/vermont.html

It states:

          "Vermont"

     "There are no specific statutes in Vermont addressing interception of communications, but the state’s highest court has held that surreptitious electronic
      monitoring of communications in a person’s home is an unlawful invasion of privacy. Vermont v. Geraw, 795 A.2d 1219 (Vt. 2002). The court decided
      that the overhearing of a conversation in a parking lot is not unlawful because the conversation was 'subject to the eyes and ears of passersby.'"
      Vermont v. Brooks, 601 A.2d (Vt. 1991)."

Unfortunately I live in Vermont and the chances of me having "standing" to challenge such statute is quite remote.  However I am sure that there are those of you who live in New Hampshire that wish to record without the possible threat of arrest.   If such a person could contact me privately I think I could "connect" such person with attorneys/law firms that might be willing to handle such a case Pro Bono (without fee) or to handle such a case on a contingency fee basis -- meaning the attorney/law firm only gets paid if they are successful and would get a percentage of the recovery -- usually 1/3 of the gross amount of the court judgment.

Wallace Nolen
PO Box 1025
Montpelier VT 05601-1025

email: wallacenolen5@yahoo.com

telephone: (802) 839-7392





Offline blackie

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Re: Recording requirements within NH (and elsewhere).
« Reply #1 on: July 10, 2011, 10:21:53 AM »

I am not an attorney but I do not believe that this statute could hold up if properly challenged.   Suppose a news reporter/cameraman wanted to "talk" to an official, person charged with a crime, etc, on camera.  The standard procedure, with camera rolling is that the reporter would approach their "target" and say something like: "Sir/Madam would you care to comment on ....".    Well, if I read the above correctly, that would mean that the reporter, cameraman and ultimately the news organization they work for would be guilty of a misdemeanor, because they haven't received permission for their "target" to record.   I am sure that if one were to "set up" a news organization like a large television station where they were found to be in violation then demand the arrest and criminal prosecution of those involved, I would venture a guess that not only would that news organization challenge the statute, but also the world-wide news media would get behind them and demand that the statute be struck down as being unconstitutional.


You need to read the definition of "oral communication"

http://www.gencourt.state.nh.us/rsa/html/lviii/570-a/570-A-mrg.htm

570-A:1 Definitions. – As used in this chapter:

    II. "Oral communication'' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.



Police still try to say you need permission to audio record, but you don't, you just need to let the other person know you are doing it.

Read about Michael Gannon of Nashua, NH. He was arrested under this law, because his home security system recorded police misconduct on his front porch, then he took that audio/video to the police station to file a complaint. He was charged with two felonies.

The charges were dropped, but the police still fuck with him.



« Last Edit: July 10, 2011, 10:23:37 AM by blackie »
that's what I'm talking about

Offline wallacenolen

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Re: Recording requirements within NH (and elsewhere).
« Reply #2 on: July 11, 2011, 09:43:11 PM »
The answer is to challenge the statute on its face!   If there is a situation in which you think that you should be able to do something that a statute is either unconstitutionally vague or it prohibits clearly protected speech.

One of the best examples of this kind of attack on a statute was done to challenge part of the NYS Penal Law's harassment statute.

See: http://174.123.24.242/leagle/xmlResult.aspx?xmldoc=198912275NY2d47_1118.xml&docbase=CSLWAR2-1986-2006

              "Because the statute, on its face, prohibits a substantial amount of constitutionally protected
               expression, and because its continued existence presents a significant risk of prosecution
               for the mere exercise of free speech, we hold section 240.25 (2) to be invalid for overbreadth,
               under both the State (art I, § 8) and Federal (1st & 14th Amends) Constitutions."

In New Hampshire, a challenge could easily be done in the New Hampshire Superior Court in the county in which the Petitioner lives in.   You would name the State of New Hampshire as the defendant.

I believe that a person could ask the New York State Library in Albany NY for copies of the briefs.  They use to supply them in microfiche for only a few dollars.  They may have a way to get the entire briefs in electronic file(s) so that all you need to do is to look up the statute and change some of the wording.

All you would have to do is to say I want to do ... and I believe that it constitutes protected speech or acts and that there is a threat of arrest ... etc.

Doing it this way would remove the possible arrest threat.  Then should a police officer or other official try to enforce this statute, then you would have a very good false arrest, unlawful imprisonment, and violation of civil of arrest.

Wallace Nolen
PO Box 1025
Montpelier VT 05601-1025

email: wallacenolen5@yahoo.com

telephone: (802) 839-7392