Law Enforcement Surveillance

Citizens Count Editor

As technology has advanced, so has the ability of law enforcement to track individuals.  Some privacy advocates believe that New Hampshire needs to update state laws to protect citizens from intrusive surveillance.  This article summarizes the emerging surveillance technology used by law enforcement in New Hampshire, and what laws exist to limit that surveillance.

Cell phone surveillance

Calls, texts, and other content

In general, New Hampshire law enforcement may not intercept or record conversations, phone calls, or other telecommunications without permission from the Office of the Attorney General or a court order.  The U.S. Supreme Court similarly ruled in Riley v. California that law enforcement officers need a warrant to look at the contents of a phone.

Cell phone location data

The U.S. Supreme Court ruled in Carpenter v. United States that law enforcement needs a warrant to ask a cell phone carrier to provide the history of a cell phone’s location — not the cell phone’s contents or calls.   

New Hampshire law already limits how law enforcement officers can collect information about cell phone locations.  In 2017 New Hampshire passed a law requiring law enforcement to get a warrant before using a cell site simulator

Cell site simulators (also known as stingrays) mimic cell towers and collect data from all nearby devices, such as the number and location of each cell phone. 

The 2017 law also requires law enforcement to delete almost all of the data gathered by a cell site simulator at the end of each day.

Car GPS data and license plate scanners

The U.S. Supreme Court ruled in United States v. Jones that law enforcement needs a warrant before installing a GPS device on a car to track a person’s movements over an extended period of time.

New Hampshire also limits the ability of law enforcement to take snapshots of vehicles with automatic license plate readers (LPRs).

LPRs use a high speed camera and character recognition technology to record the license plates of cars driving by.  Those license plates are compared against lists of vehicles involved in crimes.

According to New Hampshire law:

  • LPRs cannot photograph the occupants of a vehicle. 
  • Any law enforcement agency using an LPR must register with the Department of Safety. 
  • Unless the car is related to a crime, the LPR must destroy the record of a license plate within three minutes.

Privacy and enhanced imaging technology

New Hampshire does not have any laws regulating the use of infrared cameras or backscatter x-rays, both of which allow the user to see into cars or buildings to identify people and other objects.

However, in 2001 the U.S. Supreme Court ruled in Kyllo v. United States that law enforcement needs a warrant to use a technology that is not commonly available to the public to see inside a person’s home.

Law enforcement use of drones

There are many possible law enforcement uses of unmanned aerial vehicles, commonly known as UAVs or drones.  Law enforcement might use a drone to conduct surveillance over private property, conduct a search for a missing person, or pursue a suspect.

The New Hampshire Legislature has considered but never passed a law restricting law enforcement use of drones.  Almost every bill would have required law enforcement to get a warrant before using a drone to record over private property.

Learn more about drones in New Hampshire

Body cameras

In 2016 New Hampshire passed a law that regulates body cameras for any law enforcement agency that uses them:

  • Officers must inform individuals they are being recorded.
  • Individuals can refuse to be recorded in certain private settings, such as the home.
  • Officers must turn off body cameras in many circumstances, such as during strip searches.
  • Recordings must be stored securely and may not be submitted to facial recognition or data mining software.
  • Unless the camera records the discharge of a firearm, death, serious bodily injury, or a complaint against a police officer, the recording must be deleted after 180 days.  There are exceptions for recordings involved in court actions.

A body camera recording may be subject to the right-to-know law if it shows an officer using force or restraint, the discharge of a firearm, or an encounter that results in a felony arrest.  That means the public can demand access to the footage.  However, the law states that body camera recordings may be exempt from public disclosure if they “constitute an invasion of privacy of any person.”  Courts must determine on a case-by-case basis what body camera footage to release.

Learn more about New Hampshire’s right-to-know laws

Facial recognition technology

In 2014 New Hampshire passed a law that prohibits the Department of Motor Vehicles (DMV) from using any facial recognition technology on driver’s license photos.  New Hampshire accordingly does not share license photos with the FBI.

In 2018 the New Hampshire Legislature established a committee to study the use and regulation of biometric data, including photos used for facial recognition technology, by the government and private companies.  The committee must recommend any new laws by the end of 2018.

Social media privacy

Law enforcement uses social media to learn about people, just like other users do.  Officers can view public profiles, try to connect with witnesses or suspects, and gather information about a criminal’s associates.  Law enforcement may also compel social media websites to release private information with a warrant.

Some law enforcement agencies in the U.S. also use software that aggregates all public social media posts.  That software allows officers to search by geographic location, hashtag, and keyword to identify possible threats.  For example, in 2014 Durham, New Hampshire police used such software to search for possible witnesses of an abduction of a University of New Hampshire student. 

There are no restrictions on the use of social media monitoring software by law enforcement in New Hampshire.  However, in 2018 Facebook and Twitter made significant changes to how they share user data, which has limited the power of social media monitoring software.

Predictive policing software

Predictive policing software analyzes data about past crimes to predict where and when crimes are likely to occur in the future.  Predictive policing software may be used by police to identify neighborhoods for patrols. 

For example, the Manchester Police Department started using predictive software in 2015 to increase police patrols at certain times and locations.  The department was criticized for this after the violent arrest of a young man parked in a location identified by the software; that man was only ever charged with resisting arrest.

There are no restrictions on the use of predictive policing software by law enforcement in New Hampshire.

Law enforcement surveillance in other states

New Hampshire is usually stricter than other states when it comes to how law enforcement may use technology to surveil citizens.  However, some states and cities have additional restrictions, such as:

  • Requiring public input before law enforcement purchase or use new technology;
  • Requiring law enforcement to report any use of special technology, such as drones.

Federal law enforcement surveillance

New Hampshire law cannot limit the action of federal law enforcement officers, who are governed by federal law.  That gives New Hampshire little power to respond to global digital surveillance programs such as those revealed by Edward Snowden in 2013.

In 2017 Rep. Neal Kurk introduced a bill that would forbid any state or local official from assisting federal officials in gathering a person’s electronic data without a warrant.  The Senate killed that bill, in part due to concerns that it would inhibit information sharing between state and federal law enforcement investigating crime.

Constitutional right to privacy

In 2018 the New Hampshire Legislature approved a constitutional amendment (CACR 16) which will go before voters in November.  The amendment states: “An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.”

This amendment would not have any specific impact on law enforcement surveillance, but it would create more opportunities for citizens to challenge unwarranted law enforcement surveillance in court.

PROS & CONS

"For" Position

By Citizens Count Editor

“New Hampshire should do more to protect privacy by limiting law enforcement surveillance.”

  • Citizens should not have to give up privacy just because they are using a cell phone instead of a landline, a GPS device instead of a paper map, or social media instead of greeting cards.  New Hampshire must update its laws to ensure that technology is not enabling law enforcement to infringe on citizens’ reasonable expectations of privacy.  If New Hampshire does not safeguard privacy, innocent citizens will be viewed the same as criminals, subjecting them to police harassment and chilling their free speech through cell phones and online.
  • Predictive policing software bases its predictions on data from past police activity, so it tends to perpetuate any biases in policing.  For example, if officers have historically focused on drugs deals on the street in poor neighborhoods, predictive policing software will indicate more crime is likely to occur in those areas — leading police to investigate more low income citizens rather than white collar criminals in affluent neighborhoods.  New Hampshire needs to limit the use of predictive policing software to fight these biases.
  • There are many examples of law enforcement across the United States using technology to surveil political protestors (such as Black Lives Matter protestors) and certain religious groups (particularly Muslims).  By limiting the use of certain surveillance technology, New Hampshire can limit the ability of law enforcement to discriminate against large groups of people who are exercising their constitutional rights.
  • Any time the government or a private organization gathers large amounts of private data, that data becomes a target for hackers.  A 2016 poll from the nonpartisan Pew Research Center accordingly showed that half of Americans are not confident in the ability of the federal government to protect citizens’ data.  The simplest and safest way to protect citizens from this is to prevent the government from aggregating large amounts of private data.
  • While New Hampshire places more limits on law enforcement surveillance than other states, there are still several restrictions used in other states that New Hampshire could adopt, from limiting where police fly drones to requiring an annual report on the use of infrared cameras and other technology.

"Against" Position

By Citizens Count Editor

“New Hampshire adequately balances privacy and public safety when it comes to law enforcement surveillance.”

  • Any time New Hampshire requires administrative approval or a court order to use a surveillance technology, it slows down an investigation.  Given the speed of modern life, these delays can hinder the ability of law enforcement to catch criminals.
  • Policies that require law enforcement to disclose how they use technology provide criminals with the information they need to evade law enforcement detection.
  • In this day and age, citizens are willing to give up some privacy in exchange for safety.  A 2016 survey from the nonpartisan Pew Research Center showed that roughly half of Americans believe the government’s anti-terrorism policies have not gone far enough to protect the country, while only one-third believe those policies have gone too far restricting civil liberties. 
  • If you have not committed a crime, you have no reason to fear law enforcement surveillance.  Similarly, citizens can take action to enhance their privacy, for example by avoiding social media and using encryption on cell phones.
  • Although there are many factors that contribute to crime rates, from the economy to the weather, some studies suggest that the use of predictive policing software substantially decreases crime
  • Officials say that because New Hampshire law forbids the DMV from using facial recognition technology, New Hampshire has become a haven for criminals getting driver’s licenses with fake identities.

LEGISLATIVE HISTORY

Killed in the House

Establishes a grant program for body cameras worn by police, funded by a fee for "prestige number vanity plates"—license plates with four or fewer digits.

Killed in the House

Establishes a grant program for body cameras worn by police, funded by a fee for "prestige number vanity plates"—license plates with four or fewer digits.

Interim Study

Makes it a misdemeanor to transmit images or sounds of an individual on private property without consent, or to engage in surveillance of another without consent.

Killed in the House

Requires all law enforcement officers to wear body cameras, paid for by the state. This bill also raises a penalty assessment, from 24% to 28% of criminal, motor vehicle, and municipal ordinance fines.

Killed in the House

Requires a search warrant to obtain blood samples when someone is under investigation for driving under the influence. According to the Judicial Branch, however, the bill is unclear.

Interim Study

This bill prohibits the government from acquiring, retaining, or using personal information. There are some exceptions, such as if an individual gives written consent, a judge signs a warrant, or there is an emergency.

Interim Study

Modifies the definition of "surveillance" as it pertains to highways to prohibit the use of license plate scanning devices or other highway surveillance by private parties. This bill also increases the penalty for illegal highway surveillance to a misdemeanor.

Signed by Governor

Amends the wiretapping and eavesdropping law to include any technology utilizing wireless entry or access points. This would cover smart televisions, Alexa, Echo, baby monitors, smart thermostats, etc.

Tabled in the Senate

Requires federal authorities to get a search warrant based on probable cause to access information about residents registered to use medical marijuana.

Interim Study

As introduced, states that "An individual's genetic information and DNA sample are the property of the individual, and, except as expressly otherwise provided in statute, shall not be acquired, retained, or disclosed without the written consent of the individual or his or her legal representative or, after the individual’s death, his or her executor or other legal representative. This section shall not apply to the identification of individuals in criminal investigations."

Passed House and Senate

Constitutional amendment stating, "An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent."

Interim Study

Provides individuals with an expectation of privacy in their personal materials and protection from intrusion by government. According to the bill, personal materials are "fingerprints, saliva, hair, household papers, and effects, in private and public places." There is an exception for law enforcement investigations.

Killed in the House

Regulates the use of drones by the government, individuals, and businesses, including fines and other penalties.

Killed in the Senate

Prohibits the state and its political subdivisions from assisting a federal agency in the collection or use of a person's electronic data without consent or a warrant.

Killed in the Senate

Regulates the use of drones by the government, individuals, and businesses, including fines and other penalties.

Law Without Signature

Limits the use of cell site simulator devices for the purposes of locating and tracking the movements of mobile devices. For example, this bill requires law enforcement to delete data collected from cell site simulators after a certain period of time.

Killed in the House

Requires a warrant or a person's informed consent to use a cell site simulator device, which is used to locate and track mobile devices. This bill also regulates how law enforcement can handle the data collected through a cell site simulator device.

Killed in the House

Establishes additional restrictions on the use of number plate scanning devices by law enforcement. For example, this bill requires all license plate data to be encrypted.

Killed in the House

Requires a law enforcement officer to wear a body camera if there is a substantiated complaint based on the officer's conduct. This bill increases penalty assessments to pay for body cameras.

Signed by Governor

Requires DNA analysis for any person found not guilty by reason of insanity, found not competent to stand trial, and/or civilly committed to the secure psychiatric unit at the state prison after being charged with any felony offense, sexual offense, or offense against a child.

Killed in the House

Regulates when law enforcement officers should wear body cameras and how to treat the recordings.

Signed by Governor

Requires a law enforcement officer making a routine stop to notify an individual that he or she is being recorded unless such notice is not reasonable or practicable.

Killed in the House

Requires an investigating agency to preserve biological material obtained in connection with the investigation of a crime for as long as the person convicted remains in custody. (As of the time of submission of this bill, material must only be preserved for five years.)

Interim Study

Declares that an individual’s genetic information and DNA sample are the property of the individual and, with limited exception, shall not be acquired, retained, or disclosed without consent.

Killed in the House

Requires police to return recovered personal computers, telephones, and electronic tablets within 48 hours of recovery.

Killed in the House

Limits government access to personal information available to service providers such as Facebook.

Killed in the House

Prohibits law enforcement from collecting "personal materials" - including fingerprints, saliva, hair, and household papers - outside a crime scene without a warrant.

Tabled in the House

Permits the audio recording of a public servant performing a public function, and permits the interception of telecommunications or oral communication if at least one party consents to the recording. (As of the time of submission of this bill, all parties must consent to recording.)

Signed by Governor

Originally written to increase the amount deducted from a person’s fine for each day of a person’s incarceration. The Senate amended the bill to instead regulate body cameras for law enforcement officers.

Killed in the House

Constitutional amendment establishing a right to privacy.

Signed by Governor

Regulates the use of license plate scanning devices.

Tabled in the House

Prohibits law enforcement from using drones without a warrant or an imminent threat.

Killed in the House

Requires state law enforcement officers to wear a camera when interacting with the public. The bill establishes a police accountability and safety fund, which is funded with a surcharge on criminal and civil fines, to pay the costs for cameras and related expenses.

Killed in the Senate

Requires state police to wear body cameras when interacting with the public. The recordings are exempt from the right-to-know law. The House amended the bill to let each law enforcement agency decide whether or not to use body cameras; if body cameras are used, this bill sets out various regulations for the use of body cameras.

Killed in the Senate

Clarifies that placing a tracking device on a motor vehicle without a court order or the consent of the owner is a violation of privacy

Signed by Governor

Requires a warrant to obtain electronic device location information, with some exceptions.

Killed in the House

Limits the use of data obtained through highway surveillance.

Should NH do more to protect privacy by limiting law enforcement surveillance?

FOR
REPRESENTATIVES

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Issue Status

Gov. Chris Sununu signed a law that expands the state's laws on wiretapping and eavesdropping to include wireless devices such as smart thermostats, Google Home or Amazon's Alexa. 

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