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If I am recording a conversation with consent of the other party, but they also begin recording secretly without my consent is this a violation of the NH law?

 

It seems to me that consent would need to be given for each recording because there is the issue of control of the recording, and I did not consent for her to have control over the recording. Perhaps this is semantics. I could see, though, the argument for why consent to recording could allow any recording during the given period, however, I imagine there are many instances where this would not be true. You may, for example, be in a place with security cameras that are known, but if another person starts secretly recording you that seems wrong and would again be about who has control and access not whether or not recording is taking place. Clearly I don't understand the law, but I'm looking for clarity. Thanks.

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Not clear what you are talking about here.  If you announce the conversation is being recorded and the other party consents, that implies that you are also consenting to the recording.  When you say the conversation is being recorded that means you know it is being recorded and when you speak you do so with the knowledge your voice is being recorded.  Right?

 

Please describe the circumstances you are concerned about.  Few people here are interested in dancing around about hypotheticals.

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3 hours ago, unknown2000 said:

It seems to me that consent would need to be given for each recording because there is the issue of control of the recording, and I did not consent for her to have control over the recording.

 

Sorry, doesn't work that way.

 

Quote

The New Hampshire Supreme Court has held that a party effectively consented to the recording of a communication when the surrounding circumstances demonstrated that the party knew the communication was being recorded. New Hampshire v. Locke, 761 A.2d 376 (N.H. 1999); see also Fischer v. Hooper, 732 A.2d 396 (N.H. 1999) (upholding the sufficiency of an instruction that the jury could consider, under the standard for implied consent, not only a defendant’s words but also her actions in determining whether she consented to the recording of her conversation), superseded by statute on other grounds.

 

From "Can We Tape."

 

http://www.rcfp.org/reporters-recording-guide/state-state-guide/new-hampshire

 

In other words, you say "I'm taping" the other party says "OK, I'm taping, too." You say "I don't consent to you taping." Well, you hang up right then or your continuation of the conversation is your consent according to the NH Supreme Court.

 

Control of the recording has nothing to do with it.

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3 minutes ago, adjusterjack said:

 

Sorry, doesn't work that way.

 

 

From "Can We Tape."

 

http://www.rcfp.org/reporters-recording-guide/state-state-guide/new-hampshire

 

In other words, you say "I'm taping" the other party says "OK, I'm taping, too." You say "I don't consent to you taping." Well, you hang up right then or your continuation of the conversation is your consent according to the NH Supreme Court.

 

Control of the recording has nothing to do with it.

 

Ok, that makes sense to me. Thanks.

 

I realized this probably doesn't change anything based on your description. Just to be clear, though she consented to my taping, but she didn't say she had started recording anything. I suspected it when she grabbed her phone and stepped out of frame. The relevance here is that I was taping initially so I could have some video of my daughter through FaceTime since I haven't had time with her in person, and no videos. When my daughter wandered off and we talked briefly about the upcoming hearing she got a little cagy, grabbed her phone and left frame. 

 

I presumed that it's something she intended to play for her lawyer or who knows what. Perhaps thought she could get me to say something damning. I don't know. Either way I was a little annoyed. Didn't say anything that I would be concerned about, but I did wonder about the legality if a tape does in fact turn up.

 

Thanks again for the explanation.

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21 minutes ago, unknown2000 said:

Just to be clear, though she consented to my taping, but she didn't say she had started recording anything.

 

I don't think it matters. I don't think that you will get far with the argument that you recorded with her consent but that she illegally recorded you at the same time without your knowledge or consent.

 

Give it up.

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On 6/3/2017 at 11:39 AM, unknown2000 said:

 

If I am recording a conversation with consent of the other party, but they also begin recording secretly without my consent is this a violation of the NH law?

 

 

RSA 570-A:2 prohibits "intercept[ing] . . . any telecommunication or oral communication" "without the consent of all parties to the communication."  RSA 570-A:1 defines "intercept" to include recording.  Based on this statutory language, I agree with you "that consent would need to be given for each recording," but I do not agree that it is "because there is the issue of control of the recording."  Of course, if Person A records the call "with the consent of the other party," then something must have been said to obtain that consent.  Whether that "something" is sufficient to constitute consent for Person B also to record the call would be a fact specific inquiry.

 

By the way, if I'm understanding your follow up post correctly, you're asking because of some sort of family law dispute, and it is generally not productive for parents to be fighting each other with criminal allegations.

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On 6/5/2017 at 1:26 PM, pg1067 said:

 

RSA 570-A:2 prohibits "intercept[ing] . . . any telecommunication or oral communication" "without the consent of all parties to the communication."  RSA 570-A:1 defines "intercept" to include recording.  Based on this statutory language, I agree with you "that consent would need to be given for each recording," but I do not agree that it is "because there is the issue of control of the recording."  Of course, if Person A records the call "with the consent of the other party," then something must have been said to obtain that consent.  Whether that "something" is sufficient to constitute consent for Person B also to record the call would be a fact specific inquiry.

 

By the way, if I'm understanding your follow up post correctly, you're asking because of some sort of family law dispute, and it is generally not productive for parents to be fighting each other with criminal allegations.

 

Thanks. I also, I agree that it's not productive to fight with criminal allegations. The problem is that my wife has borderline personality disorder and it has gotten really bad in the last couple years. She is in denial and her parents are part of the problem, unfortunately she is relying on them heavily and made some criminal allegations against me already. I'm constantly bracing for the worst and trying to find anything that I can use as leverage against these attacks. Some of her claims are totally baseless, but it's still getting expensive and she's succeeded in barring me from the home and preventing me from seeing our daughter. 

 

Although I feel like I have a good case to refute her claims I am also very worried about the bias against men in custody issues and abuse claims. People with borderline personality disorder can dissociate from reality when they get really upset and see the world through a lens of their fears, so how they feel about something becomes more important than fact. A big problem if it's my word against hers, and I have no idea what she might say. 

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