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Can You Record Someone with Your Phone Without Their Permission?

Can you record a person without their permission?

This is a pretty common question because virtually everyone has a recording-capable smartphone in their pocket at all times. In New Hampshire a person is guilty of a class B felony if they, without consent of the other person, record or use for whatever purposes that person’s oral communication.

What is Oral Communication?

The question then becomes one of what constitutes “oral communication” that cannot be recorded? The New Hampshire Wiretapping Act defines oral communication as “any verbal communication uttered by a person who has a reasonable expectation that the communication is not subject to interception, under circumstances justifying such expectation.”

It follows that it is not a crime to record communication of a person who cannot reasonably expect that the communication is not private. How can somebody determine whether the recording would be a crime or would not be a crime? It depends on the circumstances.

The basic rule of thumb is not to secretly record another person. This occurs when the recording device, including your phone, is hidden on your person or in the vicinity. It becomes more complicated when the phone, as the typical recording device, is not hidden and yet also not clearly displayed in a way that would indicate recording.

Team Up with Our Attorneys to Avoid Legal Trouble

It is the best to use the advice of an attorney before recording another person in order to ensure that you are not violating the law. Contact Brennan Lenehan lacopino & Hickey and our team of experienced Manchester criminal defense attorneys today. We will be happy to assess your case, provide the advice you may need, and let you know what you should do next if you are accused of illegally filming someone with your smartphone. Consultations are available by calling (603) 734-5461.