New Hampshire Laws on Recording in Public

Recording in public in New Hampshire involves a balance between the state's strict all-party consent wiretapping law and the constitutional right to observe and document public events. While New Hampshire generally requires consent from all parties before recording a conversation, activities in public spaces receive significant protection under both the First Amendment and state law.

This guide explains when you can legally record in public, the distinction between audio and visual recording, your rights at government meetings and public events, restrictions that apply even in public settings, and how to handle common situations.

The Public Recording Framework in New Hampshire

General Principles

New Hampshire law does not prohibit visual observation or silent video recording of events in public spaces. The legal restrictions center primarily on audio recording of private conversations. The framework works as follows:

• Silent video recording in public is generally legal because no oral communication is intercepted
• Audio recording is subject to the all-party consent requirement under RSA 570-A:2, but only when the recorded conversation qualifies as a protected "oral communication"
• An "oral communication" under RSA 570-A:1 requires a reasonable expectation of privacy by the speaker
• Speakers in public spaces often have a diminished or no expectation of privacy, meaning their statements may not qualify as protected oral communications

This creates a practical result: recording audio in public is more likely to be legal than recording audio in private, because the expectation of privacy is the determining factor.

When Is There No Reasonable Expectation of Privacy?

Courts consider several factors when determining whether a speaker in a public place has a reasonable expectation of privacy:

• Location: A conversation on a busy public sidewalk or in a crowded park carries little to no expectation of privacy
• Volume: Speaking at normal or loud volume in a public area suggests no privacy expectation
• Audience: Conversations held in front of strangers or in open public forums are not private
• Subject matter context: Speeches at rallies, statements at public meetings, and arguments on the street are typically not private communications

Conversations that do retain a reasonable expectation of privacy even in public settings:

• Whispered conversations in a secluded corner of a park
• Phone calls conducted on a public bench at low volume
• Private discussions at a restaurant table where speakers have taken steps to avoid being overheard

The line is not always clear, and close cases may require legal analysis based on the specific facts.

Recording at Government Meetings

Right-to-Know Law (RSA 91-A)

New Hampshire's Right-to-Know Law provides one of the clearest and strongest protections for public recording in the state. Under RSA 91-A:2-a:

• Any person may use tape recorders, cameras, videotape equipment, and other recording devices at public meetings
• Government bodies cannot prohibit the use of recording devices at public sessions
• This applies to meetings of all public bodies at the state, county, and municipal level

Government bodies covered by this provision include:

• State legislative sessions and committee hearings
• The Governor's Executive Council
• County commission and delegation meetings
• Municipal selectboard, city council, and town council meetings
• School board meetings
• Planning boards, zoning boards, and conservation commissions
• Police commissions and fire commissions
• Any other body that meets the definition of a "public body" under RSA 91-A:1-a

The New Hampshire Attorney General and the Governor's Office have both published guidance confirming the public's right to record at government meetings.

Nonpublic Sessions

While public sessions are open to recording, government bodies may enter nonpublic sessions under RSA 91-A:3 to discuss certain confidential matters such as personnel issues, legal strategy, or matters that could adversely affect the reputation of a non-public person. Recording is not permitted during nonpublic sessions unless the body specifically allows it.

Town Meetings

New Hampshire's unique tradition of town meetings (governed by RSA 39) is subject to the same Right-to-Know recording protections. Citizens may record town meeting proceedings, including debates, votes, and presentations.

First Amendment Protections for Public Recording

Constitutional Right to Record

The First Amendment to the U.S. Constitution protects the right to record events in public spaces. The First Circuit Court of Appeals, which has jurisdiction over New Hampshire, confirmed in Glik v. Cunniffe (2011) that citizens have a right to film government officials, including police, performing their duties in public.

This protection extends to:

• Recording police activity in public (traffic stops, arrests, patrols)
• Recording public protests and demonstrations
• Recording public speeches and rallies
• Filming public buildings and infrastructure from public property
• Photographing or recording events visible from public spaces

Limitations on First Amendment Recording

The First Amendment right to record is not absolute. It may be lawfully restricted when:

• The recording interferes with government operations or obstructs public safety
• You are on private property and the owner directs you to stop recording or leave
• A court has issued a specific order restricting recording
• The recording involves areas with heightened security such as military installations or certain courtroom proceedings
• You are in a restricted area where access is controlled for safety reasons

Recording in Specific Public Locations

Sidewalks, Parks, and Streets

Recording on public sidewalks, in public parks, and on public streets is broadly protected:

• Silent video is legal without restriction
• Audio recording is generally legal when the speakers have no reasonable expectation of privacy (e.g., public speeches, loud conversations, street performers)
• Photography of people in public places is legal (there is no expectation of privacy regarding your appearance in a public setting)
• Interference restrictions may apply near police activity, accident scenes, or emergency operations

Retail Stores and Restaurants

Private businesses open to the public may set their own recording rules:

• Store owners can prohibit recording on their premises and ask you to stop or leave
• Refusing to stop recording when asked by the property owner may result in a trespassing charge
• Public sidewalks adjacent to businesses remain public spaces where recording is protected
• Audio recording inside a business is subject to RSA 570-A:2 if it captures private conversations

Shopping Malls and Private Plazas

Shopping malls and similar private property open to the public present a middle ground:

• The property owner sets the rules for recording on their premises
• Mall security can ask you to stop recording or to leave
• Continuing to record after being asked to stop may result in a trespassing charge
• Silent video of your own interactions (such as recording a customer service encounter) may be treated differently than filming other shoppers

Transportation Hubs

Recording at transportation facilities in New Hampshire:

• Public bus stops, train stations, and airports are generally public spaces where recording is permitted
• TSA screening areas at airports have specific federal restrictions on recording
• Inside public transit vehicles may involve expectations of privacy for quiet conversations between passengers
• Commercial airport terminals are public areas where silent video recording is typically permitted

Recording Protests and Demonstrations

Your Rights at Protests

Recording at public protests and demonstrations receives strong First Amendment protection in New Hampshire:

• You may record protest activity from any public space including sidewalks, parks, and public plazas
• You may record police response to protests from a safe distance
• You may record counter-protests and public confrontations
• Government officials cannot order the mass confiscation of phones or cameras from people recording a protest

Practical Tips for Recording at Protests

1. Stay on public property such as sidewalks and public parks
2. Maintain a safe distance from confrontations and police activity
3. Do not interfere with police operations or crowd control measures
4. Back up your footage to cloud storage in real time if possible
5. Know your rights but be prepared to comply with lawful orders and challenge them afterward

Drone Recording in Public Spaces

State Drone Regulations

New Hampshire enacted RSA 207:57 addressing drone use in relation to wildlife, and general privacy laws apply to drone recording:

• Drone video of public spaces is generally legal from permissible altitudes
• Drone video that captures private property details (backyard, windows, etc.) may raise privacy concerns under RSA 644:9
• Audio captured by drone microphones is subject to RSA 570-A:2 consent requirements
• Federal Aviation Administration (FAA) rules govern where and how drones may be operated

Municipal Drone Restrictions

Some New Hampshire municipalities may have local ordinances restricting drone use in certain areas such as parks, beaches, or near schools. Check local regulations before operating a drone for recording purposes.

Penalties for Illegal Public Recording

While most public recording is legal, violations can occur when audio is captured without consent or when recording takes place in restricted areas:

Offense	Classification	Maximum Penalty
Audio recording with expectation of privacy (RSA 570-A:2, I)	Class B Felony	7 years, $4,000
Participant recording without consent (RSA 570-A:2, I-a)	Misdemeanor	1 year, $2,000
Recording intimate body parts in public (RSA 644:9)	Class A Misdemeanor	1 year, $2,000
Trespassing after being asked to leave (RSA 635:2)	Misdemeanor	1 year, $2,000

More New Hampshire Recording Laws

Audio Recording | Video Recording | Voyeurism | Workplace Recording | Recording Police | Phone Call Recording | Security Cameras | Recording in Public | Landlord-Tenant | Dashcam Laws | Schools | Medical Recording

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