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The Dark Side of "Privacy Protections," Continued:

Last month, I linked to a story about someone who was "convicted of violating state wiretapping laws" for "conceal[ing] a camera to videotape a Boston University police sergeant ... during a 2006 political protest." I wrote that this was outrageous, but entirely consistent with a 2001 Massachusetts Supreme Judicial Court decision in Commonwealth v. Hyde, which is based on Massachusetts' extremely broad privacy law. The court there upheld a conviction of a person who had "secretly tape recording statements made by police officers during a routine traffic stop" of himself. This, I argued, was the dark side of "privacy" — a law aimed at protecting privacy ends up wrongly restricting people's liberty, and people's ability to protect themselves against police misconduct. Here's part of the court's rationale:

We reject the defendant's argument that the statute is not applicable because the police officers were performing their public duties, and, therefore, had no reasonable expectation of privacy in their words. The statute's preamble expresses the Legislature's general concern that "the uncontrolled development and unrestricted use of modern electronic surveillance devices pose[d] grave dangers to the privacy of all citizens of the commonwealth" and this concern was relied on to justify the ban on the public's clandestine use of such devices.

And this protection of "privacy" extends not just to allegedly misbehaving cops but even to kidnappers calling in ransom requests: "In Commonwealth v. Jackson, this court rejected the argument that, because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim's brother would not be prohibited ...."

These incidents aren't necessarily an indictment of all such laws. Perhaps such a law could be properly drafted to exclude audiotaping of conversations with the police, or of conversations with people who one reasonably believes are trying to extort something from you or threaten you. But the incidents are a warning that not all laws proposed in the name of "privacy" are good, especially when they try to protect one person's privacy by constraining another's liberty to record conversations to which one is lawfully a party.

Now there's another such incident in the news; the Massachusetts Lawyers Weekly reports:

[Simon Glik] will stand trial on Jan. 29 in Boston Municipal Court on charges of wiretapping, aiding an escape and disturbing the peace for allegedly using his cell phone to record the arrest of a 16-year-old juvenile in a drug case....

Officer Peter Savalis alleges that attorney Simon Glik was walking in the Boston Common at 5:30 p.m. when he used his phone's camera to videotape him and two other officers investigating a teen.

"[He] reached out and placed his arm into the officer's way and held out a phone," according to Savalis' police report -— an accusation that Glik denies.

The report then states that [Glik] walked around the officers and continued recording the scene.

When one of the officers asked if he was using audio and video on the phone, Glik reportedly said: "I sure am using audio." ...

I can't speak to whether Glik got close enough to the scene that he was physically interfering with the arrest of the suspect. But it shouldn't be illegal for him to audiotape the police officers (the subject of a separate charge, of which he could be convicted even if the jury finds he didn't physically interfere with the arrest). Yet under Massachusetts law, he may well be guilty, so long as the jury concludes that at least part of the tape recording happened before the officers realized that they were being recorded. Pretty bad.

Thanks to Harvey Silverglate for the pointer.

Related Posts (on one page):

  1. Massachusetts Trial Court Decision Rejecting Wiretapping / Disturbing the Peace Charges
  2. The Dark Side of "Privacy Protections," Continued:
OrinKerr:
The lesson: Requiring all-party consent in state wiretap laws is a really bad idea. Agreed.
1.31.2008 12:14am
Anon1 (mail):
What's the rationale for laws forbidding taping where at least one participant in the conversation (even just the taper) knows of the taping? Under the First Amendment, each participant may recount that conversation to the world. So what does a prohibition on taping accomplish, other than insuring that the recounting is less than fully accurate (as any memory-based recounting surely is)?
1.31.2008 12:21am
Brooks Lyman (mail):
We've got great gun laws here in Massachusetts, too....

While the Glik case, as recounted in the post, suggests that attorney Glik had no personal interest in the case (except perhaps in trying to drum up business, or concerned that the perp was being brutalized by the police), the other two cases - particularly Hyde - are certainly a violation of one's right to defend oneself against criminal attack (Jackson) or to gather evidence in one's defense for a court case.

What I find surprising is that - in one of the most liberal states in the Union - there hasn't been an outcry in the legislature to change this law (or if there has been, I missed it).
1.31.2008 12:31am
PatHMV (mail) (www):
What's annoying to me about the use of the word "privacy" in the law generally is its horrible misuse. If I have a conversation with Orin, it is NOT "private" with regards to Orin. Orin would have a First Amendment right to repeat anything I told him (assuming I was not his client, of course). There's no privacy being protected there, and calling it "privacy," muddles everything.
1.31.2008 12:55am
ChrisO (mail):
Lesson: laws should be to protect people from the state, no the other way round.
1.31.2008 1:16am
Roger Schlafly (www):
Is Mass. the only state with this nonsense? A police arrest should be public, and if someone records it, so much the better.
1.31.2008 2:23am
theobromophile (www):

Under the First Amendment, each participant may recount that conversation to the world.

Could one person say that the taping of the conversation is part of the freedom of the press: one fully expects the press to recount an event accurately, and "the press" is, arguably, anyone who publishes (in any media) information. (Shrug.)

To expand on what PatHMV said - that which is public and shared cannot, by definition, be private. The street - that quintessential public forum - is the epitome of not private. Likewise, in terms of interpersonal relationships, it seems tough to state that there ought to be a law prohibiting the recording of conversations; perhaps a law restricting the use of those recordings would be sensible (i.e. not for blackmail), but this there seems to be little point in prohibiting their creation. As it stands, if PatHMV were to call me up in MA and I were to hit the "record" button on my cell (most cellular phones come equipped with them), I would be guilty of wiretapping, even though the same conversation, over the internet, would not fall under the law.

Generally, the Constitution (and the principles derived therefrom, no matter how ill-founded) was designed to limit hte power of the sovereign over the people - our rights are not rights to seek things from our fellow citizens, nor to be free from certain things from them, but to live free from certain interferences by the sovereign. IMHO, most laws ought to function in the same manner; there seems to be little to be gained from policing the minutae of personal relationships.
1.31.2008 2:40am
UW2L:
I am reminded of James Grimmelmann's review of Solove's latest book, wherein he distinguishes legitimate from illegitimate interests in privacy or the lack thereof:

"It’s harder to say why I have an interest in preventing you from taking pictures of me on the toilet than it is to say that your interest in seeing those pictures is illegitimate. [...] As between my desire to keep a matter secret and your desire to use that matter to harm me [...], we can break the tie on the grounds that my desire is civilized but yours isn’t."

The roles are switched in these police cases from Grimmelmann's example: here the privacy interest is (arguably) illegitimate and the interest in exposure is legitimate. Is it a civilized desire for the police to suppress/sue over witness recordings of arrests as violative of their, the officers', privacy?

The state and its agents have a lot of interests. Not all of them are legitimate. Not all of them justify defeating citizens' countervailing rights (gathering evidence for one's defense, etc.) when the two are put in the balance. "Compelling" is a higher bar than "legitimate," but perhaps the "compelling interest" test that gets applied to invasions of privacy by state actors, could accommodate this odd situation of invasions of privacy of state actors (police). I don't know if that test could be applied to the Massachusetts state constitution and statutes (I'm drawing from a California-specific case, Hill v. NCAA), but it's a thought. Or maybe the Mass. legislature should do something, and it doesn't matter what Grimmelmann, whose blog surely does not get cited in articles as often as VC, said to get himself a free book.
1.31.2008 5:27am
Jay Myers:
theobromophile:

Generally, the Constitution (and the principles derived therefrom, no matter how ill-founded) was designed to limit hte power of the sovereign over the people

In the United States the people *are* the sovereign. We merely delegate some powers to various governmental bodies for the convenience of governance much like shareholders create a board of officers to run the company for them.
1.31.2008 5:47am
PersonFromPorlock:
Could a police officer refuse to testify about an arrest, citing his privacy interest in it? It sounds ridiculous but that seems to be where this decision goes.
1.31.2008 8:09am
Robin Hanson (mail) (www):
This is just very very sad.
1.31.2008 8:26am
Temp Guest (mail):
Welcome to the People's Republic of Massachusetts, a one-party state demonstrating Mencken's defintion of democracy as a political system where the people get what they ask for.... good and hard.
1.31.2008 9:12am
Donkus:
It is my understand ing that both 18 U.S.C. § 2511 and G.L. c. 272, § 99 prohibit the interception of oral and/or electronic communications, but that the recording of acts on video, without the interception of oral communications, is not prohibited by either statute. Am I incorrect here?

However, in MA it gets even crazier, as the possession of an "intercepting device," e.g. a cellphone these days, with the intent to commit an "unlawful interception" is prohibited and the installation of such a device is prima facie evidence of unlawful possession. See G.L. c. 272, § 99(C)(5). An 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).
1.31.2008 9:24am
wm13:
Gee, I dunno, lib/lab lawyer disrupting the police: I'm not that sympathetic. It seems to me to fall under the heading of "making mock of uniforms that guard you while you sleep."
1.31.2008 9:31am
Ralph Phelan (mail):
What I find surprising is that - in one of the most liberal states in the Union - there hasn't been an outcry in the legislature to change this law (or if there has been, I missed it).


Jonah Goldberg could explain it to you, but you might not like the answer.
1.31.2008 9:39am
emsl (mail):
In addition to the general problems outlined above, it is worth noting that the statute is written in such a way as to make it incomprehensible and subject, as here, to whimsical enforcement. The statute rips the "reasonable expectation of privacy" notion out of search and seizure law, gives no guidance on how private citizens are to use that idea, and then adds in undefined qualifiers requiring consideration of other unspecified "circumstances."

In the interests of full disclosure, in a former life I was a defense lawyer in Massachusetts and handled one of these cases. Ultimately, that case was dismissed before trial, but the court issued no decision (not unusual in Massachusetts) leaving the statute to create mischief another day. What was interesting is that the prosecution fundamentally admitted that it could not explain much of the statute.

Is there anyone who can defend this law? I am curious becuase it seems so obviously defective from a statutory, constitutional, and public policy point of view.
1.31.2008 9:53am
Ralph Phelan (mail):
wm13:

How is taping the police "disrupting" them? Lot's of times they tape themselves (and then Volokh readers watch the video on youtube and debate their tactics).
1.31.2008 9:53am
j q:
I'm new to the law, but during a kidnapping trial how do we know if the phone call is made during a 'kidnapping'? The way that Eugene suggests would be to get rid of content neutrality when we're deciding who has a right to privacy and who doesn't. Maybe I'm making it too difficult, and we can just say something like 'someone committing a crime has no reasonable expectation of privacy' but that still seems to beg the question, no? *If* there is a right to privacy, the underlying behavior has no business being examined.
1.31.2008 10:29am
Mark Eckenwiler:
In case anyone is wondering, at least one state appellate court has applied a little sanity to a similar situation. Florida is an all-party-consent state, which created an interesting problem one day:

We will address the more narrow issue of whether the tape recording made by a victim of his own murder must be excluded from evidence pursuant to chapter 934. ... We hold that under the circumstances of this case the subject tape recording does not fall within the statutory proscription of chapter 934.

Inciarrano went to the office of the victim and murdered him. The conversation between the victim and Inciarrano regarding a business deal in which the victim no longer wanted a part, the sound of a gun being cocked, five shots being fired by Inciarrano, several groans by the victim, the gushing of blood, and the victim falling from his chair to the floor were recorded on a tape found by the investigating officer in the victim's desk.

[...]

The district court, in the present case, correctly stated:

One who enters the business premises of another for a lawful purpose is an invitee. At the moment that his intention changes, that is, if he suddenly decides to steal or pillage, or murder, or rape, then at that moment he becomes a trespasser and has no further right upon the premises. Thus, here, if appellant ever had a privilege, it dissolved in the sound of gunfire.
447 So.2d at 389.

Accordingly, we hold that because Inciarrano had no reasonable expectation of privacy, the exclusionary rule of section 934.06 does not apply.


State v. Inciarrano, 473 So.2d 1272 (Fla. 1985).
1.31.2008 10:44am
John (mail):
Under the MA law, if you tell the cops you are taping them, (a) does that protect you from the statute's penalties, and, if so, (b) do the cops have any right to stop you?
1.31.2008 11:05am
Tony Tutins (mail):
Does Massachusetts prohibit red light cameras and automated radar traps? Or does this novel reasonable expectation of privacy on the public streets only apply to the police?
1.31.2008 11:16am
Deoxy (mail):
I already had more than nough reasons to avoid every setting foot in MA, but this one goes on the pile as well.

And Tony Tutins... Um, do you really need to even ask that question? "Some animals are more equal than others."
1.31.2008 11:36am
emsl (mail):
The statute breaks into two parts, one when there is consent, the other when there is not. If you ask and they say no, then there is no consent. So, presumably, the jury would try to decide whether the police, under all the facts and circumstances, had a reasonable expectation of privacy at the time of the taping.

As to the second point, bizarrely enough, the statue appears to apply only to recordings that include sound. I am not aware of any attempt to apply it when there are only silent pictures that are being taken.

Well you might ask wny the statute does not apply to television stations who constantly record public events without getting explicit permission from everyone present. The answer is -- no one knows.
1.31.2008 11:41am
Ari Tai (mail) (www):
Is it possible to go in the other direction and achieve a better result? Drop all constraints, assume Moore's law (and the ADA, even) make recordings of all my life's experience possible, what should the law do then to protect me from government intrusion, legal liability for my thoughts and incidental conversations (v. my actions)?

As I get older, I find I like to have automation help me remember, esp. in situations where the youngsters I'm working with have photographic memories. Imagine age discrimination in conflict with prohibitions of action, rather than use (of a given technology).

I suspect we could look to the courts to protect by denying submission of evidence of this character.
1.31.2008 11:47am
Donkus:
MA's statute does not prohibit video taping. It is the recording/interception of audio that gets you in trouble. So a red light camera, etc... are fine.

The funny thing that occurred to me is that it is unlawful to have an "intercepting device," defined as an apparatus which is capable of ... amplifying ... an oral communication. Thus, it is possible that all those elderly with hearing aids are nefarious criminals.

(Although, they likely lack the with the intent to commit an "unlawful interception" and the speaker probably be deemed to have consented at any rate.)
1.31.2008 11:48am
Donkus:
Wow I butchered a few sentences there. Now I know what that handy preview button is for...
1.31.2008 11:51am
Smokey:
In a nutshell:
...laws should be to protect people from the state, no the other way round.
1.31.2008 11:56am
alkali (mail):
I suspect that the issue in getting the Mass. statute amended to correct this problem is that the only constituency with a strong interest in the issue is the public employees unions, who would naturally oppose the amendment.

(To be clear, I'm not contending that said unions have squelched an amendment effort, because I'm not aware that there's been any such effort. Nor would I fault the unions for saying that they opposed amendment, if that proposal were made: it would arguably be malfeasance on the part of the union leadership to say otherwise.)
1.31.2008 11:58am
Mark Eckenwiler:
Donkus writes,

The funny thing that occurred to me is that it is unlawful to have an "intercepting device," defined as an apparatus which is capable of ... amplifying ... an oral communication. Thus, it is possible that all those elderly with hearing aids are nefarious criminals.

That's not correct:
The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal [...]
MGL 272-99(B)(3) (emphasis added).
1.31.2008 12:05pm
hattio1:
Mark Eckenwiler;
If the privelige only dissolves with the sound of gunfire, can the DA only play what occurs after the guy is shot? Doesn't seem to be that useful of a ruling if so.
1.31.2008 12:48pm
Donkus:
Mark you are correct - my bad.
1.31.2008 1:22pm
Virginian:
Couldn't you just put a bumber sticker on your car that reads "Any traffic stop of this vehicle may be recorded for quality control purposes"? Then it is no longer a secret recording.
1.31.2008 1:25pm
Donkus:
Interestingly, when I went and looked at the full statute (after Mark pointed out an error of mine) I do not see any mention of "consent."

I does say that "The term 'interception' means to ... secretly record." However, secretly recording and recording without consent are different things.

Anyone know where the issue of "consent" came from if its not in the statute. Perhaps the courts have construed "secretly" to mean "without consent" ...?
1.31.2008 1:31pm
Bald man:
Freedom of the Press

Why not just post the video to You-Tube and then claim press freedom? I can't imagine that the police whoudl have any basis for arresting a news crew filming (and audio recording) the arrest. In this age of citizen journalism, record anything in public that you want, post it on You-Tube and you've got your free pass.
1.31.2008 2:36pm
NickM (mail) (www):
Investigative reporting: Banned in Boston.

Film (but no sound) at 11.

Nick
1.31.2008 3:15pm
Elliot123 (mail):
As in many situations like this, the solution is simple. Thousands of people could use cell phones to secretly video record police and elected officials, then post the videos to YouTube. State legislators in bars trying to pick up college students would have priority, followed by napping municipal workers, cops in donut shops, and anyone lunching with a secretary. No need to get in the middle of an arrest.
1.31.2008 3:27pm