Electronic surveillance of police under the Massachusetts Wiretapping Statute, M.G.L. c. 272 § 99
Following a settlement in the Boston Police videotaping lawsuit last year, 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://gizmodo.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 the Wiretapping 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 intercepting 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 consent” aspect of the statute, 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.” 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.
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 consent 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. In Commonwealth v. Jackson, 370 Mass. 502, 507 (1976), the Court held that an individual 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 encounter 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 protection 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 protected by the First Amendment. Glik v. Cunniffe, 655 F.3d 78 (1st 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 the Wiretap statute (for lack of probable cause), he filed a civil rights action in the United States District Court, alleging violations of his First and Fourth Amendment rights. Id. The defendants moved to dismiss, arguing the officers were entitled to qualified immunity because “it is not well settled [the plaintiff] had a constitutional right to record the officers.” Id. The District Court denied the defendant’s motion, holding that the “First Amendment right publicly to record the activities of police officers on public business is established.” Id. The defendants appealed.
Though subject to reasonable time, place, and manner restrictions, the court held that an individual’s filming of the police engaged in official business is protected by the First Amendment. Id. at 84. It furthermore held that the plaintiff’s actions here, which included audio and visual recording, “fell well within the bounds of the Constitution’s protections.” Id.
In addition, the court held that the plaintiff’s complaint (without deciding the ultimate merits of it) made out a proper allegation for a Fourth Amendment violation, as the officers lacked probable cause to arrest him under G.L. c. 272, § 99. Id. at 88. Interpreting the Massachusetts Wiretap statute, the court held the plaintiff’s recording was not “secret” within the meaning of the statute. Id.
In light of Jackson and Hyde, the actions of a bystander in openly recording a police officer would not make out a criminal complaint for a Wiretap violation under G.L. 272 § 99. On the other hand, secretly recording an interaction with the police during a traffic stop, for example, would be a Wiretap violation. While the law only requires actual knowledge as opposed to consent in order to be lawfully recorded, it offers more protection to law enforcement in that it prohibits all secret recordings, even those done in a crowded public place.
Another important consideration is that, subject to reasonable restrictions, a bystander who openly records a police officer in a public setting is not only (generally) safe from Wiretap prosecution, but is also engaged in a constitutionally protected activity.
 The majority of wiretapping statutes found elsewhere, including the federal standard, 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.
 As the plaintiff was recording the incident on his cell phone from about ten feet away, one officer stated “I think you have taken enough pictures,” to which the plaintiff replied “I am recording this.” Once it was established that the plaintiff was recording audio as well as visual, he was placed under arrest. Glik, 655 F.3d at 79.