My Message to the State Legislature on NH Wiretapping Law

On Wednesday August 15, 2012 the NH Legislature’s Criminal Justice Committee held a subcommittee meeting pertaining to HB 553 (a bill to modify NH wiretapping law). The meeting was very informal, as opposed the the formal hearings held by a full committee or the state legislature.

There were approximately two dozen people in attendance, several State Rep’s, a representative of the Governor’s office, the Attorney General’s office, a Police Chief, a lobbyist and 11 friends of Ademo Freeman.

I delivered the following message (due to the informal structure of the meeting, I skipped the formal introduction):

I would like to thank Representative Warden for inviting me here today.

To the other members of the committee, I ask that you listen to what I’m about to say, not because I’m a voter, not because I’m a journalist, and not because I was the chairman of a national political party. I ask that you listen, because I’m speaking the truth and because I’m speaking from the heart!

This past Monday my friend, Ademo Freeman, was convicted by a jury on 3 counts of felony wiretapping because he recorded phone conversations with pubic officials without the consent of said officials. While Ademo did violate the NH wiretapping law, the NH law violates federal court precedent. Last year the 1st circuit court ruled that filming public officials while on duty is a “basic and well-established liberty safeguarded by the First Amendment.”

The 1st Circuit Court ruling was cited by a judge in Illinois as a “pervasive authority” for ruling on similar cases. Specifically the case of an Michael Allison, who had been convicted of five counts of felony eavesdropping and sentenced to 75 years in prison. The Illinois law makes it a felony to record a conversation without consent of ALL parties involved, regardless of the circumstances. Allison’s troubles began when he recorded his encounters with police who were seizing cars from his front yard. Allison then attempted to record his court appearance and was arrested for supposedly violating the Judge’s privacy. However, there is good news for Mr. Allison, another Judge (David Frankland) dismissed the charges against Michael Allison and ruled, “A statute intended to prevent unwarranted intrusion into a citizen’s privacy cannot be used as a shield for public officials who cannot assert a comparable right to privacy in their public duties… Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather information.”

Additionally, the ACLU is challenging the Illinois law in the 7th Circuit Court of Appeals, with the court expected to issue a decision in the next month. And a Chicago jury recently acquitted a woman for secretly recording a conversation with police regarding a sexual harassment complaint she was attempting to file against the department.

Illinois along with New Hampshire are 2 of the dozen states that require all party consent for recordings. This restriction makes it a crime, in many circumstances, to attempt to hold pubic officials accountable.

I’m reminded of the quote from Plato “We can easily forgive a child who is afraid of the dark; the real tragedy of life is when men are afraid of the light.” I would like to ask the committee to modify RSA 570-A:2 so that the term “all parties” is replaced with “at least one party.” and include the phrase “It is neither invasion of privacy nor wiretapping nor eavesdropping to record a telephone conversation if a party to the conversation.”

At the very least the committee should bring New Hampshire law in compliance with federal court precedent which states, “filming public officials while on duty is a ‘basic and well-established liberty safeguarded by the First Amendment’.”

This committee can bring New Hampshire’s law into compliance the easy way, through legislation; or the hard way, through the courts. If the law is not changed through the State Legislature, I am tempted to challenge the law in federal court myself and I’m willing to record phone conversations with every Legislator in the State of New Hampshire if that is what it takes to bring about this much needed change in state law.

Darryl Perry at NH House Wiretapping Hearing 8/15/2012