The Massachusetts wiretapping law makes it a felony to surreptitiously audio record anyone — even police officers and other government employees, and even when in a public place.
But a lawsuit filed Thursday by the American Civil Liberties Union of Massachusetts argues that the law is “unconstitutional as applied to the secret recording of police officers performing their duties in public.”
The ACLU lawsuit is the second suit this year to challenge the wiretapping law, which — along with the eavesdropping law in Illinois — is the strictest law on recording conversations in the country.
Other states with all-party consent laws, which require consent from everyone in a conversation before it can be recorded, have reasonable expectation of privacy provisions, meaning the laws do not apply in non-private situations.
In March, the conservative group Project Veritas Action Fund filed a similar suit to overturn the Massachusetts law.
The wiretapping law has a sordid history of being used to prosecute people for recording police officers.
In 1998, a 28-year-old musician named Michael Hyde used a hidden tape recorder during a traffic stop in Abington. After Hyde brought his recording to the police station to file a complaint about how he was treated, he was charged, tried, and convicted of wiretapping and sentenced to probation.
Hyde appealed his conviction all the way up to the Massachusetts Supreme Judicial Court, the state’s highest court, on the basis that public officials have no right to privacy when carrying out their officials duties. However, the court rejected Hyde’s argument and upheld his conviction in a 2001 ruling.
In 2010, the ACLU sued the Boston Police Department on behalf of Simon Glik, a lawyer who was arrested on a wiretapping charge for recording three police officers on Boston Common. His suit led to a 2011 ruling by the federal First Circuit Appeals Court, which found that recording police officers and other government employees is protected by the First Amendment. Glik later received a $170,000 settlement from the city.
However, because Glik openly recorded the three officers who arrested him, the ruling has left it ambiguous whether the First Amendment protects secret recording.
The ACLU’s recent lawsuit argues that the Glik ruling does indeed apply to secret recording of police officers:
The First Circuit has not limited this holding to open recording. Thus, this constitutional protection extends to both openly and secretly recording police officers performing their duties in public.
In fact, secret recording is a key component of the First Amendment right to record police officers performing their duties in public. It is the only way that individuals who are too afraid to openly record police officers can exercise their constitutionally protected rights, and it is a critical tool to gather accurate information about official government activity.
The ACLU suit was filed on behalf of two Boston activists, Eric Martin and René Pérez.
“When I am alone, I do not feel safe openly recording police officers doing their jobs in public,” said Martin, according to a press release. “In that situation, I would like to secretly record, but I have not and will not do so because I am afraid that I will get arrested or prosecuted for violating the wiretap law.”
“Police officers have screamed at me and grabbed my phone when I have openly recorded,” said Pérez. “As a result, there are times when I would want to record the police doing their jobs in public but would only feel safe doing so secretly. Because I am afraid of getting arrested or prosecuted for violating the wiretap law, however, I simply don’t record in those situations.”
According to the suit, both plaintiffs have been attacked by Boston police officers for using cameras openly:
In December 2011, Mr. Martin was participating in and photographing the Occupy Boston political demonstrations. A BPD police officer shoved him to the ground, yelled at him to stop taking pictures and instructed Mr. Martin that he was under arrest for taking his picture. It was only after a supervisor ultimately intervened that Mr. Martin was told he was free to go.
Mr. Pérez was openly recording a protest against the Syrian invasion on the street outside of Secretary of State John Kerry’s house several years ago. The demonstration had ended, and Mr. Pérez continued to openly record a police officer’s interactions with the remaining protesters.
A BPD police officer became incensed when he noticed that Mr. Pérez was recording. He got in Mr. Pérez’s face, screamed at him and grabbed his recording device. This terrified Mr. Pérez.
The lawsuit names Boston Police Commissioner William Evans and Suffolk District Attorney Daniel Conley as defendants, and seeks injunctions that would prevent them from arresting and prosecuting people who record police. As the suit notes, the police department and district attorney have a history of bringing charges against people for recording the police, and Boston police even created a training video explaining when police can charge people with wiretapping.
Jake Wark, the spokesman for Daniel Conley, did not respond to a request for comment. However, Wark told Boston.com: “With this lawsuit, the ACLU is suggesting that we strip some people of the law’s protection based on their employment … This is a dangerous and un-American line of thought.”
He added: “Through the wiretap statute, Massachusetts’ elected representatives and its courts have called secret recording a crime … We take our direction from them, not this lawsuit.”
The lawsuit filed by Project Veritas earlier this year seeks a broader ruling than the ACLU suit. Project Veritas argues that the wiretapping law is “unconstitutionally overbroad” because it’s not limited to situations where there is a reasonable expectation of privacy.
According to the lawsuit, the wiretapping law has prevented Project Veritas from “engag[ing] in undercover investigative journalism projects in Massachusetts” about topics like “reported instances of landlords taking advantage of housing shortages in Boston where students may live in unsafe and dilapidated conditions” and “the trustworthiness and accountability of government officials, including police officers.”
“While most states allow you to record where no reasonable expectation of privacy exists (think hotel lobbies or in public gatherings), Massachusetts simply banned all surreptitious recording. Because secretive recording allows investigative reporters to uncover fraud and abuse, it needs to be protected under the First Amendment, which is why we brought our suit in the first place. It’s hard to discover fraud and abuse with bright lights and large cameras,” said Benjamin Barr, Project Veritas’s lead counsel for constitutional litigation.
He added: “I think it safe to say, whether you’re a committed lefty or a diehard conservative, Massachusetts’ recording law violates the First Amendment and silences productive, healthy discussion in the state. Most Americans would agree that uncovering government waste and abuse through secretive recordings is a welcome event.”
Like the ACLU lawsuit, the Project Veritas suit names Daniel Conley as a defendant and seeks an injunction against him.
Barr said he expects oral arguments for the Project Veritas suit to be held in late summer.
The Massachusetts attorney general’s office, which is representing Conley in the Project Veritas suit, did not respond to a request for comment.