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Editorial: Police need to learn wiretapping laws

The confiscation of Pembroke resident Joe Hamel’s tablet computer by the Concord police should never have happened. That it did reflects an ignorance of the limits of wiretapping laws on the part of the police and the district court judge who granted the warrant to search Hamel’s apartment.

Hamel had applied to the city for a cab driver’s license and was rejected by the licensing board last spring. He subsequently learned from the city’s website that he had the right to appeal that decision, and he met with Concord’s veteran health and licensing officer, Gene Blake, to discuss the matter. Because he was dissatisfied with Blake’s response, Hamel told Monitor columnist Ray Duckler, he angrily placed his tablet down and began recording the exchange using audio and video.

Hamel says Blake knew he was being recorded. Blake said he did not. Either way, it’s irrelevant, something city prosecutor Tracy Connolly quickly recognized when the case got to her and she dropped the charges. New Hampshire is one of a dozen or so states that require all parties to consent to being recorded, but there are exceptions, including one grounded in the First Amendment.

The law permits the recording of public officials who are carrying out their duties in a public place. Had Connolly or someone else who understood wiretapping laws been consulted, Hamel would have been spared an embarrassing search of his home, where he was allegedly unclothed and required to dress in front of an officer, and the confiscation of his computer.

The ignorance on the part of the police and a judge, given all the publicity of misguided wiretapping arrests by the police in Weare and elsewhere, plus federal court rulings affirming the right of citizens to film or record public officials, is surprising.

It points to the need for the state’s new attorney general, Joe Foster, to conduct an education campaign that should include seminars for top law enforcement officers and a handout, similar to the one used to inform public officials about the right-to-know law, that public officials can keep on their desks and the police in their cruisers.

In 2006, a Nashua man with a security camera on his porch recorded local officers who arrived to question his then-teenage son. A sign on the porch warned that anyone nearby was being recorded. The man subsequently took his video recording to the police to complain about the demeanor of one of the officers. He was then charged with illegal wiretapping and his recording equipment was confiscated. Ultimately, charges were dropped, the equipment returned and he was issued an apology. The following year, Boston attorney Simon Glik was arrested for using his cell phone to record the Boston police, who he said were beating a homeless man on Boston Common.

He was charged with illegal wiretapping, aiding the escape of a prisoner and disturbing the peace. The U.S. Court of Appeals for the First Circuit subsequently ruled the filming of public officials in a public place, by the press or anyone else, is not grounds for arrest. Glik subsequently settled with the city of Boston for $170,000, a bill picked up by taxpayers.

The improper search of someone’s home and the confiscation of their property is no small matter. When the property confiscated is a cell phone or computer, it likely contains a wealth of private information about friends, phone numbers, photos, email conversations and private thoughts, things few people would willingly share with the police.

We urge Foster to do what it takes to make Hamel’s improper arrest on wiretapping charges the last of its kind.

Legacy Comments1

Amen. Even without the 1st Circuit opinion in the Glik case, when the legislature passed the wiretapping law, they defined "oral communications" in such a way as to allow taping public officials. "Oral Communication," which is what the statute used to define what the taping law prohibited, is defined 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." By definition, if you are in public, such as on the street or a government building interacting with the public, you don't have circumstances justifying an expectation of privacy. RSA 570-A:1. I hope Concord and the other towns who have been chasing law abiding citizens on wiretapping charges learn their lesson on this at some point. If they have to pay a lot of money to citizens they've harassed by dragging them through the court system, I'm all for it. Whatever works, as they say.

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