We Will Watch the Watchers

On August 13th 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 “persuasive authority” for ruling on similar cases. Specifically, the case of 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.”

Last fall, a Chicago jury acquitted a woman for secretly recording a conversation with police regarding a sexual harassment complaint she was attempting to file against the department. This past spring, Illinois Judge Stanley Sacks dropped a case against Chris Drew and ruled that the law was too broad and potentially criminalized “wholly innocent conduct.” Among the abuses hypothesized by the judge: the prosecution of a parent who recorded her child’s soccer game and inadvertently captured a conversation between two bystanders.

Illinois along with New Hampshire are two 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.”

On August 15th I spoke to a New Hampshire House subcommittee and recommended the committee introduce a bill 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.”

I concluded by stating the Legislature 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’.” And said, the Legislature “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.”