Arizona has a number of criminal laws dealing with illegal wiretapping and recording of telephone conversations. Our interest in this subject has been heightened by a case in New Hampshire in which Adam Mueller, a journalist and founder of copblock.org, is facing trial on three felony counts of wiretapping. He videotaped a case of alleged police brutality at a local school, and then proceeded to record his telephone conversations concerning the subject with representatives of the police department. The conversations were later posted on Mueller’s website. We thought it would be instructive for our readers to examine how Mueller’s conduct would be viewed had it occurred in Arizona.

Under A.R.S. 13-3005, unlawfully intercepting a wire or electronic communication is a class 5 felony:

“A. Except as provided in this section and section 13-3012, a person is guilty of a class 5 felony who either:

1. Intentionally intercepts a wire or electronic communication to which he is not a party, or aids, authorizes, employs, procures or permits another to so do, without the consent of either a sender or receiver thereof.

2. Intentionally intercepts a conversation or discussion at which he is not present, or aids, authorizes, employs, procures or permits another to so do, without the consent of a party to such conversation or discussion.

3. Intentionally intercepts the deliberations of a jury or aids, authorizes, employs, procures or permits another to so do.”

“Intercepting” includes recording or any other method of acquiring the contents of a wire communication. Unlike New Hampshire, however, there is a specific provision under Arizona law that exempts from the criminal law the recording of telephone conversations “by any person, if the interception is effected with the consent of a party to the communication.” A.R.S. 13-3012(9).

The result is clear. In Arizona, while Mueller might be facing the wrath of the police department, his conduct would not constitute a felony, or any other offense. The Mueller case has additional implications, including freedom of speech and jury nullification, a concept under which a jury may choose to disregard the law and issue a not guilty verdict as the jurors deem fit. In that regard, New Hampshire law specifically permits defense counsel to advise the jury that it has the right to judge the facts and the application of the law, which is tantamount to telling the jurors they may acquit the defendant, even if technically guilty of a crime, should they determine that the law is unjust or that it is being unjustly applied in a case.

We’ll continue to follow developments in New Hampshire as the case progresses through the legal system.

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