[Eugene Volokh, February 1, 2008 at 9:34pm] Trackbacks
Massachusetts Trial Court Decision Rejecting Wiretapping / Disturbing the Peace Charges

against Simon Glik, who recorded a police arrest, is here; 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:
Oren:
A little bit of good news. Actually as a MA resident, I wanted to run something by you guys. It is illegal for me to record a conversation with a police officer but what if I merely placed a telephone call, across states lines, to my computer in some other state that was recording it. Does federal law (single-party consent for phone) trump local law (two-party consent)?
2.1.2008 9:54pm
SJE:
Wow. More interesting than merely dismissing the complaint without comment, failure to prove the charge etc, the court makes a strong stand in favor of the right of the public to openly record the police during an arrest. Radley Balko should be very happy.
2.1.2008 9:55pm
emsl (mail):
This reminds us why we like that good old independent judiciary. A good decision and the court went to the trouble of writing a decision, something not that common at that level. A few other points:

First, this raises real questions concerning the prosecutor in this case. Did he or she not realize what a terrible position the Commonwealth was taking? Wouldn't it have been better to tell the police to tighten their chin straps and not get "distracted" when they are making an arrest?

Second, doesn't this make the police look like idiots? One guy taking their pictures causes them confusion and distraction? And they give them guns?

Finally, trying to get across state lines doesn't work. The federal law does not preempt the state law. If you are in Mass. and arrange to record something that occurs in Mass., parking the actual device somewhere else does nothing.
2.1.2008 11:13pm
EH (mail):
Perhaps due to my not being a lawyer, I'm struck by a possible form of precedent here. If any of the officers in question from this case were ever in a conduct-liability case, could this judgement be used to impeach the officer's testimony as being inclined to be distracted by everyday behavior, that they can't be trusted in the field?
2.1.2008 11:20pm
Lior:
Note that the ruling is a bit weaker than you'd want. It turned on the fact that the officers could see the cellphone used for the recording. Probably recording in a public place is also OK even if you don't notify the officers first, but even that is not obvious.
2.1.2008 11:24pm
neurodoc:
What does MA law mean for paparazzi(sp?) who might ply their trade there, so long as a celeb can see the cameras trained on them, this law will not avail the celeb who doesn't want their picture taken? But the law could discourage the "clandestine" taking of the celeb's picture? If a putative offender could be criminally prosecuted, does it follow that the person being surreptiously recorded ("victim") will have a cause of action against that putative offender arising out of the same set of facts? Or could there be criminal liability for this conduct without the possibility of any civil liability on account of it?
2.2.2008 3:52am
Stealth (mail) (www):
Neurodoc - the wiretapping law only covers audio. That's why the officers asked this guy if he was using audio.
2.2.2008 8:15am
David M. Nieporent (www):
Neurodoc - the wiretapping law only covers audio. That's why the officers asked this guy if he was using audio.
And why security cameras only record video and not audio.
2.2.2008 5:03pm
PatHMV (mail) (www):
emsl... I'm not sure the answer is that easy. Suppose you had a 3-way conference call, between 2 Mass. residents (Martin and Monroe) and a La. resident (each physically present in their state of residence). La. is a one-party consent state. If the La. resident records the call, he's legally in the clear. Now suppose that the La. resident only records the call at the behest of Martin. Is Martin guilty of violating the Mass. wiretapping law, simply for requesting the La. resident to do something entirely legal for the La. resident to do?

Does the answer to any of the above hinge on the active participation by the La. resident in the call, whether both Martin and Monroe are aware of his participation in the conversation? Frankly, I'm not sure why it would, though I suppose it might. I mean, in Mass. I could still, despite their stupid law, choose to put the call on speaker phone and let other people listen to it live. If that's the case, why should it matter whether the people I choose to share, live, the conversation with are physically present in the room or are present only electronically?
2.3.2008 1:52am