PAX Centurion - September / October 2013

www.bppa.org PAX CENTURION • September/October 2013 • Page 33 Electronic surveillance of police under the Massachusetts Wiretapping Statute, M.G.L. c. 272 § 99 1 Legal Notes: Kareem Morgan, Esq. Sandulli Grace P.C., Counsel to Members of the Boston Police Patrolmen’s Association F ollowing a settlement in the Boston Police videotaping lawsuit last year 2 , design and technology blog site Gizmodo.com posted an article designed to educate readers on legally (and safely) videotaping the police in public. Here’s the article: http://giz- modo.com/5900680/7-rules-for-recording-police. While Gizmodo provides helpful information for anyone involved in one of these (ever-growing) encounters, the article definitely seeks to equip the “aspiring cop watcher” (see article) with the tools and knowledge to openly record police in an age where recording devices are readily available. This entry is geared more towards educating law enforcement here in the Commonwealth, both in protecting the rights of the police officer and preserving the rights of the citizen. Overview of G.L. c. 272, § 99 M.G.L. c. 272, § 99 (“The Statute”), entitled “Interception of wire and oral communications,” is commonly referred to as theWiretap- ping statute in Massachusetts. Because G.L. c. 272, § 99 imposes criminal sanctions, and is associated with the potential exercise of several constitutional rights, the statute has far-reaching effects in both the criminal and civil context. The relevant text of c. 272 § 99 reads as follows: Any person who – willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined… The operative word, ‘interception,’means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercept- ing device by any person other than a person given prior authority by all parties to such communication. G.L. c. 272, § 99(B)(4). The term ‘intercepting device’ is defined as “any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication.” G.L. c. 272, § 99(B)(3). In 1968 the Legislature eliminated the so-called “one-party con- sent” aspect of the statute 1 , thereby prohibiting all “secret recordings” by members of the public, including “recordings of police officers or other public officials interacting with members of the public.” 2 In so doing, the Legislature created what is considered a more restrictive electronic surveillance statute than the federal standard, as well as several other states. 3 The Gizmodo article is misleading in stating that Massachusetts is one of 12 states that require the consent of all parties before someone records a conversation. As discussed below, a party need only have knowledge of the recording for it to be lawful; his or her consent is not required. This is an important distinction for law enforcement who are openly being recorded on-duty; just because you don’t con- sent to being recorded by an individual, does not mean you can stop the recording from happening or make an arrest. Criminal consideration and relevant case-law In the criminal context, a violation of the statute is classified as a felony, with a maximum penalty of five years in a state prison (or two and one-half years in a jail or house of correction). The Supreme Judicial Court has interpreted the statute to penalize only “secret” use of electronic devices to hear or record the contents of a wire or oral communication with another. 4 In Commonwealth v. Jackson, 370 Mass. 502, 507 (1976), the Court held that an indi- vidual needs to have “actual knowledge” of a recording and that such knowledge can be shown where there are “clear and unequivocal objective manifestations of knowledge.” In applying the analysis undertaken in Jackson, the Court held that a criminal defendant did in fact violate the statute by recording an en- counter with several police officers during a traffic stop, unbeknownst to the officers. Commonwealth v. Hyde, 434 Mass. 594 (2001). The significance of the Hyde opinion is that the Court (1) declined to carve out an exception for citizens to secretly record police officers during traffic stops, as police officers are just as entitled to the protec- tion of the statute; and (2) that the Court stated that the “problem [in this case] could have been avoided if, at the outset of the traffic stop, the defendant simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.” 434 Mass. 599-600, 605. Constitutional consideration and relevant case-law Interpreting the statute from a federal constitutional perspective, the First Circuit Court of Appeals has recently held that the filming or videotaping of police officers performing their responsibilities is pro- tected by the First Amendment. Glik v. Cunniffe, 655 F.3d 78 (1 st Cir.) (2011). The plaintiff in Glik was arrested for using his cell phone’s digital video camera to film several police officers making an arrest on the Boston Common. 655 F.3d at 80. He was charged, among other things, with violating the Massachusetts Wiretap statute. Id. After the trial court dismissed the count charging the plaintiff with violating theWiretap statute (for lack of probable cause), he filed a civil rights action in the United States District Court, alleging viola- tions of his First and FourthAmendment rights. Id. The defendants 1 The following article is provided as a matter of information and education only. It is not intended to provide legal advice or counsel. Do not take action in specific cases without full knowledge of the facts and competent legal advice from an at- torney. 2 Until 1968, the statute permitted the recording of one’s own conversations, or conversations with the prior permission of one party. See Hyde, infra. 3 Commonwealth v. Hyde, 434 Mass. 594, 599-600 (2001). 4 The majority of wiretapping statutes found elsewhere, including the federal stan- dard, prohibit only the secretive recording of another’s words when spoken with a “reasonable expectation of privacy.” See Hyde, supra at 599, fn. 5. As stated above, G.L. c. 272 § 99 prohibits “all secret recordings.” Id. 5 The Court also interpreted “secret” as broader than just those situations where an individual has a reasonable expectation of privacy. Jackson, infra. 6 The Court also interpreted “secret” as broader than just those situations where an individual has a reasonable expectation of privacy. Jackson, infra. 7 See Hyde, supra. 8 See Glik, supra. See Wiretapping on page 46