June 22. 2013 10:37PM

NH laws on public surveillance read in different ways

New Hampshire Sunday News

A Speed Sentry box records the speed of vehicles on Kelley Street in Manchester. The boxes are 18 inches square and are bolted to the metal posts of stop signs. (DAVID LANE/UNION LEADER)

As places such as New York City rush to increase the thousands of police surveillance cameras already rolling, there are differing interpretations of what police and the government can legally do in New Hampshire to watch folks in public.

State Rep. Neal Kurk, R-Weare, a privacy advocate who helped pass RSA 236:130 seven years ago, says the law prohibits police from conducting video surveillance without a warrant on all public ways, with some exceptions. If there is any confusion, Kurk said, he will introduce new legislation next session to make sure the meaning is clear.

"What law enforcement should not be able to do is set up surveillance and be able to capture images of individuals innocently pursuing their daily activities...," Kurk said.

But others, including Bedford lawyer Andrew Schulman, a civil libertarian, says it appears that that particular law was intended to protect people from police cameras that identify and ticket them for running red lights and speeding, which it did - and little else. Schulman doesn't see anything in the law that would mean an outright ban on police surveillance cameras on public ways.

"It says that you can't use (surveillance cameras) to determine the ownership of a motor vehicle or its occupants," Schulman said.

The law defines surveillance as "determining the ownership of a motor vehicle or the identity of a motor vehicle's occupants on the public ways of the state or its political subdivisions through the use of a camera...." A political subdivision would be local or county government.

Schulman added: "It's an odd law."

Kurk disagreed, but if there is a loophole, he wants it closed.

"If (Schulman) is suggesting police can now put up cameras and take pictures of people walking on the street, I will be putting in new legislation," Kurk said. "The idea of using surveillance cameras on people who are peacefully assembling is totally contrary to people in New Hampshire."

Manchester Police Chief David Mara said his department does use surveillance cameras on public ways without a warrant, but only rarely.

"If that's the law, nobody's ever heard of it," Mara said of RSA 236:130, which is known as Highway Surveillance Prohibited.

Surveillance cameras are effective, especially in high-crime areas, Mara said.

"Say you have a fire down an alley or someone's breaking into cars all the time or vandalism. It's a tool law enforcement uses," Mara said. "As long as you are in a public place with no expectation of privacy, you can use it."

He declined to provide details on what Manchester uses cameras for or how they are monitored. "We don't talk about tactics," Mara said.

"If it makes the public safer, yes I do favor it. We can't be everywhere," Mara said.

Assistant Safety Commissioner Earl Sweeney is considered the expert on RSA 236:130, and is sometimes asked to meet with police departments to explain what they can and cannot do with surveillance cameras on public ways.

"They can put (surveillance cameras) up in London. They can have a camera on every street corner, but that is illegal in New Hampshire," Sweeney said, if the license plate and vehicle occupants are identifiable.

The law exempts police "on a case-by-case basis" in the investigation of a particular crime. Police can set up surveillance in parks and public areas that do not involve public ways, Sweeney said.

"If the park is open to the public, and if they are taping the pond and people feeding the pigeons, it is not illegal," Sweeney said.

Reuters reported on Friday that the New York Police Department is now expanding one of the most sophisticated surveillance networks in the country.

Reuters quoted NYPD spokesman Paul Browne: "The technology, having been inspired and engineered with a sense of urgency after 9/11, has obvious applications to conventional crime fighting."

NYPD has doubled the number of public and private surveillance cameras from 3,000 in lower Manhattan to 6,000 citywide, Reuters reported, with one-third being police cameras and the rest existing cameras that private businesses let police tap into.

Sweeney said there is no prohibition on private businesses and individuals videotaping public streets in New Hampshire, but they are not allowed to capture audio. If a crime occurs within view of a private security camera, police can ask permission to use those videos. If the business or individual says no, police can seek a warrant.

Sweeney said it is legal for police cruisers to have dashboard cameras. They are usually activated when the cruisers's blue lights go on.

Sound can only be recorded if people are told they are being audio recorded, he said.

Police can't set up video surveillance "just because there was a lot of misbehaving" on a certain street, Sweeney said, adding the highway surveillance law is not widely known.

Acting Hanover Police Chief Frank Moran said video surveillance is used there "every now and then in a specific criminal matter."

His department was planning to buy license plate recognition cameras that mount on the back of cruisers, but was told they were prohibited in New Hampshire, though widely used in Vermont and most other states.

The cameras can quickly scan license plates and determine whether a car has been stolen or was being driven by someone wanted by police.

"It's too bad really. It is excellent technology," Moran said.

Moran also said there is one camera on top of the Hanover Town Hall that feeds into the police station. Sweeney said that camera could be problematic if police use it to monitor the nearby streets.

"If they are just protecting the town hall, they can do it," Sweeney said. "If they are going out into other streets and getting hundreds of yards that has nothing to do with protecting the town hall, that could be illegal if the video captures license plates and recognizable images of occupants."

Stories about the increase in camera surveillance across the country, along with allegations of massive National Security Agency surveillance of phones and emails of Americans stop Kurk in his tracks.

"Surveillance images could be retained by police forever and used in a whole variety of ways that citizens do not expect that information to be used," Kurk said.

"We don't expect that dossiers on our innocent activities will be kept by police. That's '1984,'" Kurk said, referring to the George Orwell novel.

"That's not New Hampshire."