The Union Leader reports that the Waere, New Hampshire police have charged a man under the state’s felony wiretapping statute for recording a traffic stop. As the police officer approached the man’s car he made a call on his cell phone. Apparently, the person he was calling didn’t answer and he left a voicemail message. Since the voicemail was recorded on a recording device the Weare police are claiming that the man made an illegal recording of the police officer.
The statute under which the man was charged makes it a class B felony if: “…without the consent of all parties to the communication, the person: (a) Wilfully intercepts… any telecommunication or oral communication.”
The text of the statute is here. It is not a model of clarity. In fact, it’s a mess. For example, “telecommunication” and “intercept” are defined so broadly that one commits a class B felony simply by being in the room when someone else is talking on a speaker phone and the person on the other end has not consented to you being in the room and hearing the conversation. “Oral communication’’ under the Act means “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” Good luck arguing with a lawyer about what that means. Another part of the statute makes it a class B felony to manufacture any device capable of “intercepting” a “telecommunication” or “oral communication.” Every cell phone maker whose products are sold in New Hampshire appears to be committing multiple felonies in the state. I wonder if they know that.
One thing in the statute is clear, however. If the person intercepting the oral communication is a party to the oral communication it is a misdemeanor and not a felony to “intercept” it. So, right off the bat the prosecutor has wrongfully charged this man by the express terms of the statute. And that’s if merely leaving someone else a voicemail about your traffic stop even violates the statute. And furthermore, that’s only if the statute itself is not unconstitutionally over broad and vague, which it almost certainly is.
One would think this statute must date back to around 1790 but it was actually enacted in 1995. Let’s see now, What was going on about that time? Oh, yeah, Kenneth Starr was investigating Bill Clinton and some woman had made audio recordings of someone making some statements that tended to support some other woman’s accusations against Clinton, and the State of Maryland was trying to charge her with a felony under a statute in Maryland that also required consent of all parties, and the New Hampshire legislature was under the control of Democrats at the time…Oh! OK, now I get it.
Well, New Hampshire is back in the control of adults now so maybe this statute will get reviewed and thrown into the dustbin of history where it belongs.
Professor Glenn Reynolds of the University of Tennessee Law School has this message for police and prosecutors who harass citizens over video or audio recording:
“What are you afraid of? Do you have something to hide? If you’re innocent, you should have nothing to fear . . . .”