NH Law About... Wiretapping

Introduction to... Wiretapping

Posted October 3, 2016. 

New Hampshire is a "two-party" or "all-party" state where - under most circumstances - the consent of every party to a conversation is required before recording is legal. New Hampshire law is stricter than the federal and many other states' laws which require only the consent of one party.

Unless parties to a conversation consent to the recording, it is prohibited in most circumstances as a violation of an individual’s privacy and as an intrusion on a person’s U.S. Constitutional Fourth Amendment rights, as well as a violation of the New Hampshire Constitutional guarantee against unreasonable search and seizure. An exception to this general rule exists for law enforcement personnel when they have enough probable cause to get a court order giving them permission to do the interception within strict limitations. New Hampshire’s law on this topic is found in RSA 570-A: Wiretapping and Eavesdropping. Intentional violations of RSA 570-A can result in a class B felony or a misdemeanor, as well as civil liability.

RSA 570-A, which is based on the federal statute, is difficult to read and understand. The 2012 Congressional Research Service report on wiretapping and eavesdropping discusses the federal Electronic Communication Privacy Act, and is relevant here. It is a good resource since it explains the law clearly.  In discussing concepts in the federal law, the report provides background information and helps to interpret similar concepts in the New Hampshire law. Additionally, the report includes several appendices listing related state statutes, including any from New Hampshire.

Criminal Practice and Procedure has an excellent detailed discussion of New Hampshire law compared to federal law on eavesdropping or wiretapping. There have been many New Hampshire and federal cases interpreting the law, and McNamara summarizes them clearly as he explains the statute. (Note: sample New Hampshire cases are linked to below.) All of Chapter 7, “Electronic Surveillance and Related Investigative Procedures” is relevant; section 7.02 discusses New Hampshire’s statute in relation to the federal one. This is the best resource a person could consult to gain a clear explanation of the many details relating specifically to the New Hampshire law.

Electronic Eavesdropping and Interception of Electronic Communication and Data is a 2001 publication of the New Hampshire Bar Association. Of particular interest is the chapter: "An Overview of Civil Liability Under RSA 570-A" which discusses the recovery of money damages in a civil action for violation of RSA 570-A and possibly a common law claim for invasion of privacy. There is a discussion of "interspousal wiretapping" and, in a later chapter, one party consent and minor children. As with any legal resource, particularly one this old, any references to cases or statutes must be double-checked to make sure they are still good law.

Another, related, statute, RSA 644: Breaches of the Peace and Related Offenses, prohibits many activities which would violate a person’s privacy, including being observed, photographed, recorded, amplified, broadcasted, viewed or in any way transmitting images of private body parts, sounds or sexual activity in an area where a person would have a reasonable expectation of privacy. It also prohibits a person from looking into a residential structure with no legitimate purpose. Most of these offenses may result in a charge of a misdemeanor. Law enforcement personnel working in the scope of their employment are exempted from RSA 644. Section 21 of this chapter relates to the prohibition against the governmental searching of portable electronic devices unless the person doing the search has a warrant to do so based on probable cause.

The “Read About …” section of this guide refers to resources about the law and will provide context and key terms. “Read the Law …” links to selected laws and should be used as a jumping off point for further research. Please remember that this guide is for information purposes only and is not comprehensive. It is intended as a starting point for research, to illustrate the various sources of the law, and to provide guidance in their use. NH Law About ...  is not a substitute for the services of an attorney.   


Read about... Wiretapping

WEBSITES

Reporters Committee on the Freedom of the Press: Reporter's Recording Guide: State-by-state guide: New Hampshire (August 1, 2012)  GO>

Link verified on: October 3, 2016

Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping. (Congressional Research Service report, Oct. 9, 2012)   GO>

Link verified on: October 3, 2016


PRINT

Criminal practice and procedure / by Richard B. McNamara. New Providence, NJ : LexisNexis Matthew Bender, 2010. 5th ed.   GO>

Link verified on: June 26, 2017

Electronic Eavesdropping and Interception of Electronic Communication and Data. New Hampshire Bar Association. 2001

An overview of RSA 570-A: the state "Wiretapping and eavesdropping" statute / Malinda R. Lawrence -- An overview of civil liability under RSA 570-A / C. Kevin Leonard -- What civil practitioners should know about the Federal Wiretap and Stored Communications Acts / Andrew R. Schulman -- Stored wire and electronic communications: federal statutes / Mark S. Zuckerman -- Professional conduct issues / Russell F. Hilliard -- Punitive damages / Tina L. Annis -- Fictional cases.   GO>

Link verified on: October 3, 2016

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Read the law about... Wiretapping

NEW HAMPSHIRE CONSTITUTION

N.H. Constitution Pt. 1, Art. 19  GO>

Link verified on: October 3, 2016


NEW HAMPSHIRE STATUTES

RSA 570-A. Wiretapping and Eavesdropping  GO>

Link verified on: October 3, 2016

RSA 570-B. Pen Register, Trap and Trace Devices   GO>

Link verified on: October 3, 2016

RSA 595-A. Search Warrants  GO>

Link verified on: October 3, 2016

RSA 625. Criminal Code. Preliminary  GO>

Link verified on: May 9, 2017

RSA 627. Justification   GO>

Link verified on: February 3, 2017

RSA 644. Breaches of the Peace and Related Offenses  GO>

Link verified on: March 23, 2017

Find it in a Library ... New Hampshire Revised Statutes Annotated

Link verified on: June 26, 2017

Find the New Hampshire statutes in print at libraries throughout the state.   GO>

Learn About New Hampshire Statutes: New Hampshire statutes are the laws of the State of New Hampshire as enacted by the New Hampshire General Court. GO>
 

NEW HAMPSHIRE CASES

113 N.H. 313 (1973). State v. Lee

Link verified on: October 3, 2016

"In order to maintain a proper balance between the duty of the State to protect the public and the individual's right of privacy and free expression. (see State v. Bisaccia, 58 N.J. 586, 590-91, 279 A.2d 675, 677 (1971)), our legislature, like many others, has enacted a comprehensive "Wiretapping and Eavesdropping" statute to carefully regulate the use of these devices for law enforcement purposes. RSA 570-A:1-11 (Supp. 1972). This statute is similar in most respects to the wiretapping and electronic surveillance requirements of the Federal Crime Control Act of 1968. 18 U.S.C.A. §§ 2510-20."   GO>

118 N.H. 90 (1978). State v. Ayres

Link verified on: October 3, 2016

"New Hampshire RSA ch. 570-A, however, is a stricter wiretapping and eavesdropping law, and protects the individual's right to privacy to a greater degree than the United States Constitution or the federal statute, 18 U.S.C. §§ 2510-2520."   GO>

136 N.H. 575 (1992). State v. Lamontagne

Link verified on: October 3, 2016

"In enacting RSA chapter 570-A, the legislature balanced the State's duty to protect the public and enforce the laws with the individual's right to privacy by carefully regulating the use of wiretapping and eavesdropping devices for law enforcement purposes."   GO>

143 N.H. 585 (1999). Fischer v. Hooper

Link verified on: October 3, 2016

"This appeal arises in the context of a jury verdict finding the defendant, David Hooper, liable for both a violation of the New Hampshire wiretapping and eavesdropping statute, RSA ch. 570–A (1986 & Supp.1991) (amended 1995, 1996, 1998), and the common law tort of invasion of privacy."   GO>

Find it in a Library ... New Hampshire Reports

Link verified on: June 26, 2017

Find the New Hampshire Reports in libraries throughout the state.   GO>

Learn About New Hampshire Cases: New Hampshire case law consists of the published opinions of the New Hampshire Supreme Court. GO>
 

UNITED STATES CONSTITUTION

U.S. Constitution, Fourth Amendment  GO>

Link verified on: October 3, 2016


FEDERAL STATUTES

18 U.S.C. 2510-2522  GO>

Link verified on: October 3, 2016


FOR MORE HELP ...

Lawyer Referral Service of the New Hampshire Bar Association.

Link verified on: June 26, 2017

Contact the Lawyer Referral Service at (603) 229-0002, or submit an online referral request. Office hours are Monday through Thursday, 9:00 AM to 4:30 PM, and 9:00AM to 3:00 PM on Fridays.   GO>

New Hampshire Law Library

Link verified on: June 26, 2017

The state's only public law library. Call, email, or visit, we'll be happy to help.   GO>


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