NH Law About ...: Recording Conversations: Read About The Law ...

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Introduction

The questions we get at the Law Library about audio recording conversations usually refer to private parties: family members, neighbors, or landlords and tenants, so that is what we focus on in this guide, though we have included some information about other situations.

New Hampshire law is stricter than federal and many other states' laws. New Hampshire is a "two-party" or "all-party" state where every party to a conversation has to agree to the recording. The New Hampshire statute is RSA 570-A, Wiretapping and Eavesdropping. Intentional violations of RSA 570-A can result in a class B felony or a misdemeanor charge as well as money damages.

Online

New Hampshire. Dept. of Justice. Law Enforcement Manual. 2020
Go to Part VII, Requests for Authorization of "One-Party" Intercepts Under RSA 570-A:2, for a discussion of the statute.
Congressional Research Service. Wiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation. (August 9, 2012)
"Recording face to face or telephone conversations is a crime under the laws of New Hampshire, N.H. REV. STAT. ANN. §570-A:2. There are law enforcement and communications carrier exceptions, but there is no one party consent exception."
Justia. Recording Phone Calls and Conversations. January 2018
"Federal and state laws differ as to the legality of recording phone calls and conversations. Determining which jurisdiction’s law controls in cases involving recording devices or parties in multiple states can be complex, so it is likely best to adhere to the strictest applicable law when in doubt, and/or get the clear consent of all parties before recording."
Congressional Research Service. Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping. (Oct. 9, 2012)
"This report provides an overview of the Electronic Communications Privacy Act (ECPA) and the Foreign Intelligence Surveillance Act (FISA). ECPA consists of three parts. The first, often referred to as Title III, outlaws wiretapping and electronic eavesdropping, except as otherwise provided. The second, the Stored Communications Act, governs the privacy of, and government access to, the content of electronic communications and to related records. The third outlaws the use and installation of pen registers and of trap and trace devices, unless judicially approved for law enforcement or intelligence gathering purposes."
Digital Media Law. Practical Tips for Recording Phone Calls, Conversations, Meetings, and Hearings
"The best way to document that you have obtained consent is to record the consent along with the phone call or conversation. As a practical matter, this will require (1) notifying the person you intend to record of your intent to record; (2) getting consent off-the-record; (3) starting the recording; and then (4) asking the person to confirm on-the-record that he or she consents to the recording."
Lindsey Barrett & Ilaria Liccardi, Accidental Wiretaps: The Implications of False Positives by Always-Listening Devices for Privacy Law & Policy, 74 Okla. L. Rev. 79 (2022)
"Always-listening devices like smart speakers, smartphones, and other voice-activated technologies create enough privacy problems when working correctly. But these devices can also misinterpret what they hear, and thus accidentally record their surroundings without the consent of those they record, a phenomenon known as a "false positive." The failure of device owners to get consent from those around them is exacerbated by the accidental recordings, as it means that the companies collecting the recordings aren’t obtaining the consent to record their subjects that the Federal Wiretap Act, state wiretapping laws, and consumer protection laws require."

Print

Criminal Practice and Procedure by Richard B. McNamara
Call Number: KFN1280 .N48 v. 1-2A 2023

Publication Date: 2023

Although it's about criminal law, the book Criminal Practice and Procedure has an excellent, detailed comparison of New Hampshire and federal law on eavesdropping or wiretapping and does include some discussion about actions by private parties.
The Law of Electronic Surveillance by James G. Carr
Call Number: KF9670.A15 L39

In The Law of Electronic Surveillance, there are chapters on surveillance by communications companies, and interspousal and intrafamilial surveillance.
Wiretapping & Eavesdropping : Surveillance in the Internet Age by Clifford S. Fishman and Anna T. McKenna
Call Number: KF9670 .F5722

"There has been an avalanche of cases arising out of marital and child custody disputes, in which one spouse or ex-spouse has tape recorded the telephone conversations (and, rarely, oral communications) of the other spouse." (Chapter 6, Part B, Intrafamily Interceptions.)

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