Bill Text: NH HB553 | 2011 | Regular Session | Introduced
Bill Title: Relative to the law on wiretapping and eavesdropping.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-10-25 - House Committee Report: Refer to Interim Study for Jan 4 (Vote 17-0; Consent Calendar) [HB553 Detail]
Download: New_Hampshire-2011-HB553-Introduced.html
HB 553 – AS INTRODUCED
2011 SESSION
04/03
HOUSE BILL 553
AN ACT relative to the law on wiretapping and eavesdropping.
SPONSORS: Rep. Ulery, Hills 27
COMMITTEE: Criminal Justice and Public Safety
This bill makes various changes to the wiretapping and eavesdropping statute.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
11-0131
04/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT relative to the law on wiretapping and eavesdropping.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Wiretapping and Eavesdropping; Definitions. RSA 570-A:1 is repealed and reenacted to read as follows:
570-A:1 Definitions. As used in this chapter:
I. “Aggrieved person” means a person who was a party to any intercepted wire, electronic, or oral communication or a person against whom the interception was directed.
II. “Contents,” when used with respect to any wire, electronic, or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
III. “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system, but does not include:
(a) A wire or oral communication;
(b) A communication made through a tone-only paging device;
(c) A communication from a tracking device; or
(d) Electronic funds transfer information stored by a financial institution in a communication system used for the electronic storage and transfer of funds.
IV. “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, electronic, or oral communication other than:
(a) Any telephone or telegraph instrument, equipment, facility, or any component thereof:
(1) Furnished to the subscriber or user by a provider of wire or electronic communication services in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business in accordance with applicable provisions of telephone and telegraph company rules and regulations, as approved by the public utilities commission;
(2) Being used by a communication common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his or her duties pursuant to this chapter;
(3) Being used by a provider of wire or electronic communication services in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his or her duties;
(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
V. “Intercept” means the covert aural or other acquisition of, or the recording of, the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.
VI. “Investigative or law enforcement officer” means any officer of the state or political subdivision thereof who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.
VII. “Judge of competent jurisdiction” means a judge of the superior court.
VIII. “Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.
IX. “Organized crime” means the unlawful activities of the members of a highly organized, disciplined association engaged in supplying illegal goods and services, including but not limited to homicide, gambling, prostitution, narcotics, marijuana or other dangerous drugs, bribery, extortion, blackmail and other unlawful activities of members of such organizations.
X. “Person” means any employee or agent of the state or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.
XI. “Wire communication” means the aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station.
2 Wiretapping and Eavesdropping; Interception and Disclosure. Amend RSA 570-A:2 to read as follows:
570-A:2 Interception and Disclosure of [Telecommunication] Wire, Electronic, or Oral Communications Prohibited.
I. A person is guilty of a class B felony if, except as otherwise specifically provided in this chapter or without the consent of all parties to the communication, the person:
(a) Wilfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any [telecommunication] wire, electronic, or oral communication;
(b) Wilfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
(1) Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in [telecommunication] wire or electronic communication, or
(2) Such device transmits communications by radio, or interferes with the transmission of such communication, or
(3) Such use or endeavor to use (A) takes place on premises of any business or other commercial establishment, or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment; or
(c) Wilfully discloses, or endeavors to disclose, to any other person the contents of any [telecommunication] wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through the interception of a [telecommunication] wire, electronic, or oral communication in violation of this paragraph; or
(d) Willfully uses, or endeavors to use, the contents of any telecommunication or oral communication, knowing or having reason to know that the information was obtained through the interception of a [telecommunication] wire, electronic, or oral communication in violation of this paragraph.
I-a. A person is guilty of a misdemeanor if, except as otherwise specifically provided in this chapter or without consent of all parties to the communication, the person knowingly intercepts a [telecommunication] wire, electronic, or oral communication when the person is a party to the communication or with the prior consent of one of the parties to the communication, but without the approval required by RSA 570-A:2, II(d).
II. It shall not be unlawful under this chapter for:
(a) Any operator of a switchboard, or an officer, employee, or agent of any [communication common carrier] provider of wire or electronic communication services whose facilities are used in the transmission of a [telecommunication] wire or electronic communication, to intercept, disclose, or use that communication in the normal course of employment while engaged in any activity which is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of such communication; provided, however, that said [communication common carriers] provider of wire or electronic communication services shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
(b) An officer, employee, or agent of any [communication common carrier] provider of wire or electronic communication services to provide information, facilities, or technical assistance to an investigative or law enforcement officer who, pursuant to this chapter, is authorized to intercept a [telecommunication] wire, electronic, or oral communication.
(c) Any law enforcement officer, when conducting [investigations of or making arrests for offenses enumerated in this chapter] an investigation or making an arrest for any felony offense, to carry on [the] his or her person an electronic, mechanical, or other device which intercepts oral communications and transmits such communications [by radio] for the purpose of the officer’s safety.
(d) An investigative or law enforcement officer [in the ordinary course of the officer’s duties pertaining to the conducting of investigations of organized crime, offenses enumerated in this chapter, solid waste violations under RSA 149-M:9, I and II, or harassing or obscene telephone calls] in the course of an investigation of any felony offense, criminal threatening under RSA 631:4, harms or threats to certain government officials under RSA 631:4-a, harassment under 644:4, stalking under RSA 633:3-a, or an attempt or conspiracy to commit such offense, to intercept a [telecommunication] wire, electronic, or oral communication, when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made unless the attorney general, the deputy attorney general, or an assistant attorney general designated by the attorney general determines that there exists a reasonable suspicion that evidence of criminal conduct will be derived from such interception. Oral authorization for the interception may be given and a written memorandum of said determination and its basis shall be made within 72 hours thereafter. The memorandum shall be kept on file in the office of the attorney general.
(e) [Where the offense under investigation is defined in RSA 318-B,] The attorney general to delegate authority under RSA 570-A:2, II(d) to a county attorney. The county attorney may exercise this authority only in the county where the county attorney serves. The attorney general shall[, prior to the effective date of this subparagraph,] adopt specific guidelines under which the county attorney may give authorization for such interceptions. Any county attorney may further delegate authority under this section to any assistant county attorney in the county attorney’s office. The written memorandum of authorization issued pursuant to this delegated authority shall be kept on file in the office of the county attorney where the authorization was given.
(f) An officer, employee, or agent of the Federal Communications Commission, in the normal course of employment and in discharge of the monitoring responsibilities exercised by the commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a [telecommunication] wire, electronic, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.
(g) [Any law enforcement officer, when conducting investigations of or making arrests for offenses enumerated in this chapter, to carry on the person an electronic, mechanical or other device which intercepts oral communications and transmits such communications by radio.
(h)] Any municipal, county, or state fire or police department, the division of emergency services and communications as created by RSA 21-P:48-a, including the bureau of emergency communications as defined by RSA 106-H, or any independently owned emergency service, and their employees in the course of their employment, when receiving or responding to emergency calls, to intercept, record, disclose, or use a [telecommunication] wire or electronic communication, while engaged in any activity which is a necessary incident to the rendition of service or the protection of life or property.
[(i)] (h) Any public utility regulated by the public utilities commission, and its employees in the course of employment, when receiving central dispatch calls or calls for emergency service, or when responding to central dispatch calls or calls for emergency service, to intercept, record, disclose, or use a [telecommunication] wire or electronic communication, while engaged in any activity which is a necessary incident to the rendition of service, or the protection of life and property. Any public utility recording calls pursuant to this subparagraph shall provide an automatic tone warning device which automatically produces a distinct signal that is repeated at regular intervals during the conversation. The public utilities commission may adopt rules relative to the recording of emergency calls under RSA 541-A.
[(j)] (i) A uniformed law enforcement officer to make an audio recording in conjunction with a video recording of a routine stop performed in the ordinary course of patrol duties on any way as defined by RSA 259:125, provided that the officer shall first give notification of such recording to the party to the communication.
[(k)] (j)(1) The owner or operator of a school bus, as defined in RSA 259:96, to make an audio recording in conjunction with a video recording of the interior of the school bus while students are being transported to and from school or school activities, provided that the school board authorizes audio recording, the school district provides notification of such recording to the parents and students as part of the district’s pupil safety and violence prevention policy required under RSA 193-F, and there is a sign informing the occupants of such recording prominently displayed on the school bus.
(2) Prior to any audio recording, the school board shall hold a public hearing to determine whether audio recording should be authorized in school buses, and if authorized, the school board shall establish an administrative procedure to address the length of time which the recording is retained, ownership of the recording, limitations on who may listen to the recording, and provisions for erasing or destroying the recording. Such administrative procedure shall permit the parents or legal guardian of any student against whom a recording is being used as part of a disciplinary proceeding to listen to the recording. In no event, however, shall the recording be retained for longer than 10 school days unless the school district determines that the recording is relevant to a disciplinary proceeding, or a court orders that it be retained for a longer period of time. An audio recording shall only be reviewed if there has been a report of an incident or a complaint relative to conduct on the school bus, and only that portion of the audio recording which is relevant to the incident or complaint shall be reviewed.
[(l)] (k) A law enforcement officer in the ordinary course of the officer’s duties using any device capable of making an audio or video recording, or both, and which is attached to and used in conjunction with a TASER or other similar electroshock device. Any person who is the subject of such recording shall be informed of the existence of the audio or video recording, or both, and shall be provided with a copy of such recording at his or her request.
(l) A person to make an inadvertent audio recording of a conversation or a video recording of an event occurring in a public place.
3 Wiretapping and Eavesdropping; Manufacture, Distribution, Possession, and Advertising. Amend RSA 570-A:3 to read as follows:
570-A:3 Manufacture, Distribution, Possession, and Advertising of [Telecommunication] Wire, Electronic, or Oral Communication Intercepting Devices Prohibited.
I. A person is guilty of a class B felony if, except as otherwise specifically provided in this chapter, he or she:
(a) Manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of [telecommunications] wire, electronic, or oral communications; or
(b) Places in any newspaper, magazine, handbill, or other publication any advertisement of:
(1) Any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of [telecommunications] wire, electronic, or oral communications, or
(2) Any other electronic, mechanical, or other device, where such advertisement promotes the use of such device for the purpose of the surreptitious interception of [telecommunications] wire, electronic, or oral communications.
II. It shall not be unlawful under this section for:
(a) A [communications common carrier] provider of wire or electronic communication services or an officer, agent, or employee of, or a person under contract with, [a communications common carrier] such provider, in the normal course of the [communications common carrier’s] provider’s business, or
(b) An officer, agent, or employee of, or a person under contract with, the state, or a political subdivision thereof, in the normal course of the activities of the state, or a political subdivision thereof, to manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of [telecommunications] wire, electronic, or oral communications.
4 Wiretapping and Eavesdropping; Confiscation of Intercepting Devices. Amend the section heading in RSA 570-A:4 to read as follows:
570-A:4 Confiscation of [Telecommunication] Wire, Electronic, or Oral Communication Intercepting Devices.
5 Wiretapping and Eavesdropping; Prohibition of Use. Amend RSA 570-A:6 to read as follows:
570-A:6 Prohibition of Use as Evidence of Intercepted [Telecommunications] Wire, Electronic, or Oral Communications. Whenever any [telecommunication] wire, electronic, or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.
6 Wiretapping and Eavesdropping; Authorization for Interception. Amend RSA 570-A:7 to read as follows:
570-A:7 Authorization for Interception of [Telecommunications] Wire, Electronic, or Oral Communications. The attorney general, deputy attorney general, or a county attorney, upon the written approval of the attorney general or deputy attorney general, may apply to a judge of competent jurisdiction for an order authorizing or approving the interception of [telecommunications] wire, electronic, or oral communications, and such judge may grant, in conformity with RSA 570-A:9, an order authorizing or approving the interception of [telecommunications] wire, electronic, or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offenses as to which the application is made, when such interception may provide, or has provided, evidence of the commission of organized crime, as defined in RSA 570-A:1, [XI] IX, or evidence of the commission of the offenses of homicide, kidnapping, gambling, theft as defined in RSA 637, corrupt practices as defined in RSA 640, child pornography under RSA 649-A, computer pornography and child exploitation under RSA 649-B, criminal conduct in violation of the securities law, as defined in RSA 421-B:3, 421-B:4, 421-B:5, 421-B:19, and 421-B:24, criminal conduct in violation of the security takeover disclosure laws, as defined in RSA 421-A:3, 421-A:7, 421-A:8, 421-A:11, and 421-A:13, robbery as defined in RSA 636:1, arson as defined in RSA 634:1, hindering apprehension or prosecution as defined in RSA 642:3, tampering with witnesses and informants as defined in RSA 641:5, aggravated felonious sexual assault as defined in RSA 632-A:2, felonious sexual assault as defined in RSA 632-A:3, escape as defined in RSA 642:6, bail jumping as defined in RSA 642:8, insurance fraud as defined in RSA 638:20, dealing in narcotic drugs, marijuana, or other dangerous drugs, hazardous waste violations under RSA 147-A:4, I, or any conspiracy to commit any of the foregoing offenses.
7 Wiretapping and Eavesdropping; Authorization for Disclosure. Amend RSA 570-A:8 to read as follows:
570-A:8 Authorization for Disclosure and Use of Intercepted [Telecommunications] Wire, Electronic, or Oral Communications.
I. Any law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any [telecommunication] wire, electronic, or oral communication, or evidence derived therefrom, may disclose such contents to another law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
II. Any law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any [telecommunication] wire, electronic, or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of the officer’s official duties.
III. Any person who has received, by any means authorized by this chapter, any information concerning a [telecommunication] wire, electronic, or oral communication or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of any state or in any federal or state grand jury proceeding.
IV. No otherwise privileged [telecommunication] wire, electronic, or oral communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.
V. When a law enforcement officer, while engaged in intercepting [telecommunications] wire, electronic, or oral communications in the manner authorized herein, intercepts [telecommunications] wire, electronic, or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in paragraphs I and II. Such contents and any evidence derived therefrom may be used under paragraph III, when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.
8 Wiretapping and Eavesdropping; Procedure for Interception. Amend RSA 570-A:9 to read as follows:
570-A:9 Procedure for Interception of [Telecommunication] Wire, Electronic, or Oral Communications.
I. Each application for an order authorizing or approving the interception of a [telecommunication] wire, electronic, or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information:
(a) The identity of the law enforcement officer making the application, and the officer authorizing the application;
(b) A full and complete statement of the facts and circumstances relied upon by the applicant to justify the applicant’s belief that an order should be issued, including: (1) Details as to the particular offense that has been, is being, or is about to be committed, (2) A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (3) A particular description of the type of communications sought to be intercepted, (4) The identity of the person, if known, committing the offense and whose communications are to be intercepted;
(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, the application shall include a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
(e) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, [telecommunications] wire, electronic, or oral communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each such application; and
(f) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
II. The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
III. Upon such application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of [telecommunication] wire, electronic, or oral communications, if the judge determines on the basis of the facts submitted by the applicant that:
(a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in RSA 570-A:7;
(b) There is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
(c) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) There is probable cause for belief that the facilities from which, or the place where, the [telecommunications] wire, electronic, or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
IV. Each order authorizing or approving the interception of any [telecommunication] wire, electronic, or oral communication shall specify:
(a) The identity of the person, if known, whose communications are to be intercepted;
(b) The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
(c) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
(d) The identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
(e) The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
V. No order entered under this section may authorize or approve the interception of any [telecommunication] wire, electronic, or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 10 days. Extensions of an order may be granted, but only upon application for an extension made in accordance with paragraph I, and the court making the findings required by paragraph III. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than 10 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 10 days.
VI. Whenever an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require.
VII.(a) The contents of any [telecommunication] wire, electronic, or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any [telecommunication] wire, electronic, or oral communication under this paragraph shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under the judge’s directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for 10 years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of RSA 570-A:8, I and II, for investigations. The presence of the seal provided for by this paragraph, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any [telecommunication] wire, electronic, or oral communication or evidence derived therefrom under RSA 570-A:8, III.
(b) Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.
(c) Any violation of the provisions of this paragraph may be punished as contempt of the issuing or denying judge.
VIII. The contents of any intercepted [telecommunication] wire, electronic, or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a state court unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This 10-day period may be waived by the judge if the judge finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.
IX.(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof, may move to suppress the contents of any intercepted [telecommunication] wire, electronic, or oral communication, or evidence derived therefrom, on the grounds that:
(1) The communication was unlawfully intercepted;
(2) The order of authorization or approval under which it was intercepted is insufficient on its face; or
(3) The interception was not made in conformity with the order of authorization or approval.
Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted [telecommunication] wire, electronic, or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may, in the judge’s discretion, make available to the aggrieved person or such person’s counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.
(b) In addition to any other right to appeal, the state shall have the right to appeal from an order granting a motion to suppress made under subparagraph IX(a), or the denial of an application for an order of approval, if the attorney shall certify to the judge or other official granting such motion or denying such application that the appeal is not taken for purposes of delay. Such appeal shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted.
X. If an order authorizing interception is entered pursuant to this chapter, the order, upon request of the attorney general or deputy attorney general, shall direct that a [communication common carrier] provider of wire or electronic communication services shall furnish to the law enforcement agency designated by the attorney general all information, facilities, or technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such [communication common carrier] provider of wire or electronic communication services is according the person whose communications are to be intercepted. The [communication common carrier] provider of wire or electronic communication services shall furnish such facilities or technical assistance at its prevailing rate or tariff.
9 Wiretapping and Eavesdropping; Reports Concerning Intercepted Communications. Amend the section heading in RSA 570-A:10 to read as follows:
570-A:10 Reports Concerning Intercepted [Telecommunications] Wire, Electronic, or Oral Communications.
10 Wiretapping and Eavesdropping; Reports Concerning Intercepted Communications. Amend RSA 570-A:10, III to read as follows:
III. On or before December 1 of each odd numbered year, the attorney general shall include in the report required by RSA 7:37, a report concerning the number of applications for orders authorizing or approving the interception of [telecommunications] wire, electronic, or oral communications and the number of orders and extensions granted or denied during the preceding 2 years.
11 Wiretapping and Eavesdropping; Recovery of Civil Damages. Amend RSA 570-A:11 to read as follows:
570-A:11 Recovery of Civil Damages Authorized. Any person whose [telecommunication] wire, electronic, or oral communication is intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and be entitled to recover from any such person: (a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher; (b) punitive damages; and (c) a reasonable attorney’s fee and other litigation costs reasonably incurred. Good faith reliance on a court order or on a representation made by the attorney general, the deputy attorney general, or a county attorney shall constitute a complete defense to any civil or criminal action brought under this chapter.
12 Attorney General; Records. Amend RSA 7:6-b to read as follows:
7:6-b Certain Records of [Communications Common Carriers] Providers of Wire or Electronic Communication Services.
I. Every [communications common carrier, as defined in RSA 570-A:1, IX] provider of wire or electronic communication services, upon the written demand of the attorney general that the attorney general has reasonable grounds for belief that the service furnished to a person or to a location by such [communications common carrier] provider has been, is being, or may be used for an unlawful purpose, shall furnish to the attorney general:
(a) The names and addresses of persons to whom stated listed or unlisted telephone numbers are assigned.
(b) The names and addresses of persons to whom any stated or identified services are provided.
(c) Any local and long distance billing records for any subscriber to, or customer of telephone service or wireless telephone service as defined in RSA 638:21, XI.
(d) The length of service provided to a subscriber or customer by the [communications common carrier] provider.
(e) The types of services provided to the subscriber or customer by the [communications common carrier, and] provider.
(f) The telephone number or other subscriber number or identity.
II. No such [communications common carrier] provider of wire or electronic communication services nor any agent, servant, or employee thereof, shall be civilly or criminally responsible or liable for furnishing or delivering any records or information in compliance with said demand and the attorney general shall not disclose any information obtained as a result of said demand except as it is essential to the proper discharge of the attorney general’s duties. Any such written demand by the attorney general shall be understood to constitute an administrative subpoena for purposes of determining compliance with federal law.
III. The attorney general may delegate authority under this section to any assistant attorney general. Where the offense under investigation is defined in RSA 318-B or RSA 649-B, the attorney general may delegate authority under this section to a county attorney. A county attorney may further delegate authority under this section to any assistant county attorney in the county attorney’s office. The county attorney may exercise this authority only in cases within the jurisdiction of that county attorney. The attorney general shall adopt rules, pursuant to RSA 541-A, relative to:
(a) Circumstances under which an assistant attorney general, a county attorney, or an assistant county attorney may issue such demands to [communications common carriers] providers of wire or electronic communication services under this section.
(b) The procedures for applying for such demands.
(c) The records of such demands which shall be kept and maintained.
13 Pen Register, Trap and Trace Devices; Definitions. Amend RSA 570-B:1, I to read as follows:
I. “Telecommunication” [has the meaning set forth in RSA 570-A:1] means “electronic communication” as defined in RSA 570-A:1, III, or “wire communication” as defined in RSA 570-A:1, XI.
14 Obstructing Governmental Operations; Hindering Apprehension or Prosecution. Amend RSA 642:3, I(f) to read as follows:
(f) Having knowledge that an investigative or law enforcement officer has been authorized or has applied for authorization under RSA 570-A to intercept a [telecommunication] wire, electronic, or oral communication, or under RSA 570-B to install and use a pen register or trap and trace device, gives notice of the possible interception or installation and use to any person.
15 Effective Date. This act shall take effect January 1, 2012.
