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33 CAPITOL STREET CONCORD, NEW HAMPSHIRE 03301-6397 MICHAEL A. DELANEY
ANN M. RICE
DEPUTY ATTORNEY GENERAL
September 26, 2012
Wallace Nolen P.O. Box 1025 Montpelier, VT 05601-1025 Dear Mr. Nolen: I am writing regarding your concern that law enforcement in New Hampshire are recording citizens without their knowledge or permission. While this office has not received a written complaint from you, it is my understanding that you believe that law enforcement are therefore in violation of the anti-wiretapping laws of the state. When this office receives a citizen complaint alleging criminal conduct, we will conduct an investigation to determine whether there is evidence to support a reasonable suspicion that a crime has been committed. If there is, a full criminal investigation will be opened. I have reviewed the concerns you have conveyed to the Governor's Office and the applicable statutes in New Hampshire concerning illegal wiretapping. Based on that review, I have determined that there is no evidence to support a reasonable suspicion of criminal conduct on the part of law enforcement agencies or personnel. RSA 570-A:2, entitled "Interception and Disclosure of Telecommunication or Oral Communication Prohibited" sets forth the elements for the felony and misdemeanor crimes related to illegal interception of telecommunications or oral communications. There are, however, exceptions set forth in the statute. Relevant to the concerns you have expressed, RSA 570-A:2, II states in pertinent part: II. It shall not be unlawful under this chapter for: (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 communication by radio.
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(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 communication 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 call, to intercept, record, disclose or use a telecommunication, which engaged in any activity which is a necessary incident to the rendition of service or the protection of life or property. (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. (1) 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 electronic shock device. Any person who is the subject of such recording shall be informed of the existence of the avidio or video recording, or both, and shall be provided with a copy of such recording at his or her request. RSA 570-A:2, II. As you can see, there are a number of exceptions under the statute that permit law enforcement personnel to intercept telecommunications or to make audio or video recordings in the course of executing their duties. Therefore, without any more specifics beyond the general concern you have expressed about the possibility of law enforcement recording citizens, there is insufficient evidence to establish a reasonable suspicion of criminal conduct. Accordingly, this office will not open a criminal investigation. Thank you for your time and the attention you have given this matter.
Geoffrey W.RrWard Attorney III Criminal Bureau (603)271-3671 Fax:(603) 223-6250 cc: Victoria Fox, Office of Governor John Lynch
«Matter Matter ID» 811268