New Hampshire wiretap law and job interviews: RSA 570-A for recruiters

New Hampshire is one of the strictest all-party consent states. Under RSA 570-A:2, intercepting a phone call or private conversation "without the consent of all parties to the communication" is a class B felony, and its Supreme Court has reviewed a felony prosecution of a person who recorded calls he was on himself. A candidate recorded without consent can also sue for at least $1,000. The practical rule for an interviewer is the same as in Pennsylvania or Maryland: say you are recording or transcribing, and get a yes before you start.

Calling across state lines? The consent checker compares New Hampshire with your state.

Below: the statutory wording and definitions, the Mueller case and what "wilfully" means, how the law applies to phone, video and in-person interviews, penalties and damages, cross-state calls, and a consent line to read.

What RSA 570-A says

RSA 570-A:2, I makes a person 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," they wilfully intercept any telecommunication or oral communication, or wilfully disclose or use the contents of one while knowing or having reason to know it was intercepted unlawfully.

The definitions in RSA 570-A:1 set the scope:

• Intercept means "the aural or other acquisition of, or the recording of, the contents" of a telecommunication or oral communication through a device. Acquiring contents as text is still acquisition.
• Telecommunication means "the transfer of any form of information in whole or in part through the facilities of a communications common carrier." Phone calls fit squarely. Internet video calls usually travel at least in part over carrier facilities; we found no New Hampshire decision on video platforms, so treat them as covered.
• Oral communication means a verbal communication by a person "who has a reasonable expectation that the communication is not subject to interception, under circumstances justifying such expectation." This covers private in-person conversations.

Paragraph I-a adds a misdemeanor for knowingly intercepting a communication "when the person is a party to the communication or with the prior consent of one of the parties," but "without the approval required by RSA 570-A:2, II(d)." Paragraph II(d) concerns law enforcement officers, so I-a reads as aimed at officers recording without the required approval. Do not read it as a lighter rule for private interviewers: Mueller, below, was a felony prosecution of a private person under paragraph I.

The Mueller case: a participant charged with a felony

In State v. Mueller, 166 N.H. 65 (2014), the defendant placed three phone calls, to a police captain, a school principal and a school employee, recorded them without telling them, and posted the recordings online. He was charged with felony wiretapping under RSA 570-A:2, I(a) even though he was a party to every call.

The New Hampshire Supreme Court reversed his conviction and sent the case back for a new trial, because the jury had been told the required mental state was "purposely." The court held that "wilfully" in RSA 570-A:2, I means the defendant acted "with an intentional or reckless disregard for the lawfulness of his conduct," and that a person who has "a good faith belief that [his] conduct was lawful" has not violated the felony provision.

Two lessons for hiring teams:

• Being on the call does not make recording lawful in New Hampshire. The prosecution in Mueller went forward on exactly that basis.
• The good-faith point helps someone who genuinely believed they were within the law. It does not help a team that has read a page like this one and decided not to ask. Once you know the rule, recording without consent looks like reckless disregard.

How the law applies to interview formats

Penalties and damages

• Criminal: interception, disclosure and use under RSA 570-A:2, I are each a class B felony.
• Civil: under RSA 570-A:11, a person whose communication is intercepted, disclosed or used in violation of the chapter can recover "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," punitive damages, and "a reasonable attorney's fee and other litigation costs reasonably incurred."

Disclosure and use are separate violations. An agency recruiter who shares a New Hampshire candidate's recording with a client, knowing or having reason to know it was made without consent, takes on exposure of their own.

What it means for recording or transcribing an interview

1. Consent from everyone, every time. The exceptions in RSA 570-A:2, II are for carriers, law enforcement, emergency services, utilities and a few other public functions such as school buses. None covers hiring.
2. Transcripts count. The definition of intercept includes "aural or other acquisition" of contents.
3. Capture on your own computer is still interception. Avoiding a meeting bot changes what the candidate sees, not what the statute covers.
4. Candidates who record. A candidate in New Hampshire who records without your agreement faces the same statute. If one asks permission, answer according to a written policy and apply it to everyone.
5. If your team has already been recording without asking, change the practice from the next call and talk to a lawyer before doing anything with existing recordings. Using or sharing them can be its own violation.

Calls that cross the New Hampshire line

New Hampshire is bordered by Massachusetts, another strict state (see Massachusetts wiretap law for interviews), and by Maine and Vermont, which are usually described as one-party. A recruiter in Maine calling a candidate in New Hampshire should not assume Maine's rule decides the matter: courts in all-party states have applied their own law to protect people on their side of a call, as California's Supreme Court did in Kearney v. Salomon Smith Barney (2006). We found no New Hampshire appellate decision resolving which state's law governs a recording made outside the state of a person inside it, so plan for New Hampshire's rule. The general approach is in recording calls across state lines.

A consent line for New Hampshire interviews

"One thing before we start: I'd like to [record / transcribe] this
interview so my notes for the [role] position are accurate. It's
seen only by [who] and deleted after [period]. If you'd prefer I
didn't, just say so and I'll take notes by hand; it won't count
against you. Do I have your OK to [record / transcribe]?"

[Clear yes: start. No or unsure: capture stays off.]

Starting capture just before the question, so the candidate's answer is on the record, is a common way to keep proof. If the answer is no, delete that opening. More wording, including panel and email versions, is in the interview recording consent script.

Implied consent exists, but do not leave it to a jury

New Hampshire's statute is framed around "the consent of all parties," and consent does not always have to be spoken. In Fischer v. Hooper, 143 N.H. 585 (1999), a civil case over taped phone calls, the New Hampshire Supreme Court approved telling a jury to consider not only a person's words but also their actions in deciding whether they consented to being taped. That cuts both ways for an interviewer. A candidate who is told and carries on talking may be found to have consented, but only after a dispute, on the facts, by a jury. A question the candidate answers yes or no, captured at the start, keeps the matter out of court.

Checklist for New Hampshire interviews

1. Ask every candidate, in every format, before capture starts.
2. Count every interviewer as a party whose agreement you need.
3. Treat transcription, AI notes and audio recording the same way.
4. Do not share a recording you are unsure was made with consent.
5. If a candidate declines, stop, take notes by hand, and log it neutrally.
6. Write the rule into a dated policy so the whole team follows it.

New Hampshire's rule sits alongside thirteen others in the two-party consent states table.