According to the New Hampshire Union Leader (via Slashdot), police in the town of Weare charged a man with unlawful "interception of oral communications" - a felony - because he used his phone during a traffic stop. According to police, the call was a crime because the driver ended up leaving a message, so they claim that the voice-mail service on the other end of the call recorded the officer's communications without his consent.
That is, they charged him with wiretapping because the officer's voice could be heard in the background of his phone call.
Under state law, a person is guilty of a felony if he "willfully intercepts [an] oral communication" without the consent of all parties to it, although "interception" is defined to mean doing so by use of "any electronic, mechanical, or other device." N.H. Rev. Stat. § 570-A:1-2. (Presumably "other device" doesn't include an ear, but I don't know what position these officers might take on that.) Both "acquisition" and "recording" are prohibited, so I'm not sure why the involvement of voice-mail was considered important. I'm assuming, of course, that they even gave it that much thought, or actually bothered to read the statute they were relying on.
The driver, William Alleman, claimed he had been targeted because he had been at a meeting of a local libertarian activist group, and said the officer followed him after he left the meeting. The call he made was to "an answering service for libertarian activists who are in trouble with police," and as that suggests this is not the first such dispute to arise in New Hampshire by any means. Members of the same group were arrested last year on similar grounds, one for videotaping a traffic stop of another member, and the other one for using his phone in the lobby of the police station. Those charges were later dropped. This might have had something to do with the fact that police could not produce their dashboard-camera video of the first arrest -- supposedly due to camera failure -- or maybe it was just because charging somebody with this is so embarrassingly stupid and overreaching. Alleman is now represented by the same attorney that represented those defendants.
That attorney has probably already noted that "device" does not include "any telephone or telegraph instrument ... furnished to the subscriber or user ... and being used by the subscriber or user in the ordinary course of its business ...." N.H. Rev. Stat. § 570-A:1(IV(a)). Seems like cell phones should qualify as "telephone instruments," doesn't it? Also, "oral communication" doesn't include one uttered by someone with no justifiable expectation of privacy at the time, which should always include police who are detaining somebody, or, actually, police doing anything official in public.
Of course there are many examples recently of people being arrested for recording some official action, even though these arrests are both remarkably unconstitutional and usually illegal because of a common expectation-of-privacy exception. But the fact that it happens a lot doesn't mean we should get used to it.
Update: I posted a version of this at Forbes.com about three weeks ago, and just realized I hadn't reposted it here. I checked to see if there had been any new developments, and coincidentally it turns out that Alleman was arraigned today (Apr. 5). The charge has at least been reduced from a felony to a class C misdemeanor, but the fact that he is actually being prosecuted at all for this is ridiculous. Alleman has posted a video of his arraignment at his blog (looks like he filed a motion for permission to do this, which was probably wise), and for some reason the judge does not come down and just slap the prosecutor after being told the facts. Will the State actually take this to trial? We shall see.
