The advent of modern technology has made it possible for people to intercept telephonic and electronic communications. While often used by police in preparing a criminal case, lay persons have attempted to use intercepted communications to support their claim in many civil cases. For example, one parent may attempt to record a telephone conversation between the child and the other spouse to bolster their position in a custody dispute.
It is important to note that New Hampshire’s wiretapping statute is stricter than many other states and its federal counterpart. Under New Hampshire law, unless all parties consent to the interception (i.e.: all parties are aware that their conversation is being recorded), the person who records the conversation is committing a crime. Moreover the illegally recorded conversation would most likely be excluded from evidence at any trial.
The wiretapping statute was written prior to the advent of such things as Twitter or instant messaging programs. The Supreme Court has wrestled with whether parties who engage in instant messaging on a computer consent to having their conversations recorded. The cases which discussed such intercepts dealt with a police officer attempting to build a case against a sexual predator. However, one can easily imagine a parent attempting to record instant messages between their child or spouse or their spouse and that spouse’s significant other. It is also unclear as to whether the wiretap statute applies to such devices as computer programs which capture the key stroke entered into a computer or programs which surreptitiously copy email messages from another account.
Any person who is considering employing such devices should speak with an attorney who is familiar with the wiretap statutes and interpretative case law before embarking on what it is arguably a perilous exercise.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].