New Hampshire Has No Right-to-Record Statute, Only RSA 570-A

A full-text search of the Revised Statutes returns no provision using the phrases a right-to-record law would need. There is no section titled after recording police, no counterpart to the express rights other states enacted, and the only place the phrase recording of a law enforcement officer appears in the RSAs is the definitions section of the body-worn camera chapter, RSA 105-D:1. New Hampshire's answer therefore comes out of RSA 570-A, "Wiretapping and Eavesdropping," which is a criminal statute of general application rather than a rule about the police.

RSA 570-A:2, I sets the felony. A person commits a class B felony who, without the consent of all parties to the communication, wilfully intercepts or endeavors to intercept, or procures another to intercept, any telecommunication or oral communication. "Intercept" is defined at RSA 570-A:1, III as the aural or other acquisition of, or the recording of, the contents of such a communication through an electronic, mechanical or other device, so pressing record is itself the act. Under RSA 651:2, II(b) and IV(a) a class B felony carries up to 7 years of imprisonment and a fine of up to $4,000 for an individual.

RSA 570-A:2, I-a is the paragraph a bystander is most likely to meet. It makes it a misdemeanor to knowingly intercept a communication when you are a party to it, or with one party's prior consent, without the approval RSA 570-A:2, II(d) requires. New Hampshire therefore does not have a participant exception of the kind one-party-consent states rely on: being in the conversation reduces the grade of the offence, it does not remove it.

The limit that matters is definitional. RSA 570-A:1, II confines "oral communication" to verbal communication uttered by a person who has a reasonable expectation that the communication is not subject to interception, under circumstances justifying such expectation. Words spoken where no such expectation exists are not an oral communication at all, so recording them is not an interception and RSA 570-A:2 is not engaged. That expectation test, not any statutory permission, is the whole of the analysis in New Hampshire, and it is fact-specific rather than fixed by the code.

The chapter regulates officers as well. RSA 570-A:2, II(j) permits a uniformed officer to make an audio recording alongside video of a routine stop performed in the ordinary course of patrol duties on a way as defined by RSA 259:125, but only if the officer first gives notification of the recording to the party, unless that is not reasonable or practicable. Subparagraph II(l) covers cameras attached to a TASER or similar electroshock device and requires that the person recorded be informed and be given a copy on request. Subparagraph II(m) covers body-worn recordings made under RSA 105-D, whose own RSA 105-D:2, VIII requires officers to tell a person they are being recorded as soon as practicable and to write down the reason if they do not.

Nothing in New Hampshire law creates a fixed distance a bystander must keep. The obstruction offence, RSA 642:1, I, reaches only intimidation, actual or threatened force or violence, simulated legal process, or other unlawful conduct undertaken with a purpose to hinder a public servant. RSA 642:2 adds that verbal protestations alone shall not constitute resisting arrest or detention.

An unlawful interception under RSA 570-A:2, I is a class B felony, punishable under RSA 651:2 by up to 7 years and a fine of up to $4,000. Intercepting a conversation you are part of, without the attorney general approval described in RSA 570-A:2, II(d), is a misdemeanor under RSA 570-A:2, I-a. RSA 570-A:6 bars the contents of an unlawfully intercepted communication, and evidence derived from it, from being received in any New Hampshire trial, hearing or proceeding where disclosure would violate the chapter. RSA 570-A:11 gives the person recorded a civil action against whoever intercepted, disclosed or used the communication, with actual damages but not less than liquidated damages of $100 per day of violation or $1,000, whichever is higher, plus punitive damages and reasonable attorney's fees and litigation costs.

Good faith reliance on a court order, or on a representation by the attorney general, deputy attorney general or a county attorney, is a complete defence to both the civil and criminal actions. RSA 570-A:3 separately criminalizes manufacturing, distributing or possessing interception devices, and RSA 570-A:4 allows their confiscation.