Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:
New Mexico has an interference with communications statute that regulates wiretapping, making unlawful connection with infrastructure of instruments belonging to another person, intercepting, reading or copying messages, either directly or by use of any apparatus. All these actions are considered unlawful.
The video recording statute addresses the use of unaided eye or instrumentality to view, photograph, videotape, film, webcast or record another person without the knowledge and consent of that person, but only if such actions focus on the intimate areas of the person.
Impact of law
The wiretapping statute only addresses interference with communications held over a wired telephone or telegraph. The law does not specifically cover the case of in-person private conversations, as these are not held using wired infrastructure. We can then assert that the federal law may be used to address these cases in New Mexico.
The same is effectual for electronic communications, where the infrastructure used for transfer of the communication is not wired. Although unclear under state law, the status of wireless electronic communications seems to also be regulated by federal law, which makes New Mexico a “one party consent state”.
References to Physical TSCM
The law addresses unlawful tapping or connecting “with any telegraph or telephone line, wire, cable or instrument “ and also “reading, interrupting and obstructing of communications” by use of any apparatus.
In the voyeurism status, “instrumentality” is defined as a periscope, telescope, binoculars, camcorder, computer, motion picture camera, digital camera, telephone camera, photographic camera or electronic device of any type. We assert that the law addresses all most common technical surveillance devices.
References to Cyber TSCM
The law does not specifically address electronic communications where the infrastructure used for the act of communication is not wired. If we assume that federal laws apply in these cases, as concluded by previous analysis, we can assert that cyber means of interference with communications can also make a case under New Mexico law.
Violations of both the communication interference and voyeurism statutes are misdemeanor offenses, punishable by either imprisonment, fines or both.
Anyone whose wire, electronic or oral communication has been intercepted, disclosed or used in violation of the wiretapping statute can claim actual damages, punitive damages, attorney’s fees and court costs. Actual damages are computed at $100 a day for each day of violation or $1,000, whichever is greater.
N.M. Stat. Ann. 30-12-1. Interference with communications; exception.
Interference with communications consists of knowingly and without lawful authority:
- displacing, removing, injuring or destroying any radio station, television tower, antenna or cable, telegraph or telephone line, wire, cable, pole or conduit belonging to another, or the material or property appurtenant thereto;
- cutting, breaking, tapping or making any connection with any telegraph or telephone line, wire, cable or instrument belonging to or in the lawful possession or control of another, without the consent of such person owning, possessing or controlling such property;
- reading, interrupting, taking or copying any message, communication or report intended for another by telegraph or telephone without the consent of a sender or intended recipient thereof;
- preventing, obstructing or delaying the sending, transmitting, conveying or delivering in this state of any message, communication or report by or through telegraph or telephone; or
- using any apparatus to do or cause to be done any of the acts hereinbefore mentioned or to aid, agree with, comply or conspire with any person to do or permit or cause to be done any of the acts hereinbefore mentioned.
Whoever commits interference with communications is guilty of a misdemeanor unless such interference with communications is done:
(3) by a person acting under color of law in the investigation of a crime, where such person is a party to the communication, or one of the parties to the communication has given prior consent to such interception, monitoring or recording of such communication.
N.M. Stat. Ann. 30-9-20. Voyeurism prohibited; penalties.
- Voyeurism consists of intentionally using the unaided eye to view or intentionally using an instrumentality to view, photograph, videotape, film, webcast or record the intimate areas of another person without the knowledge and consent of that person:
(1) while the person is in the interior of a bedroom, bathroom, changing room, fitting room, dressing room or tanning booth or the interior of any other area in which the person has a reasonable expectation of privacy; or
(2) under circumstances where the person has a reasonable reasonable expectation of privacy expectation of privacy, whether in a public or private place.
- Whoever commits voyeurism is guilty of a misdemeanor, except if the victim is less than eighteen years of age, the offender is guilty of a fourth degree felony.
- As used in this section:
(2) “instrumentality” means a periscope, telescope, binoculars, camcorder, computer, motion picture camera, digital camera, telephone camera, photographic camera or electronic device of any type.
N.M. Stat. Ann.30-12-11. Right of privacy; damages.
- Any person whose wire or oral communication is intercepted, disclosed or used in violation of this act shall:
(1) 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
(2) be entitled to recover from any such person actual damages, but not less than liquidated damages computed at the rate of one hundred dollars ($100) for each day of violation or one thousand dollars ($1,000), whichever is higher; punitive damages; and a reasonable attorney’s fee and other litigation costs reasonably incurred.