The Volokh Conspiracy

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)?

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.

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.

Neurodoc - the wiretapping law only covers audio. That's why the officers asked this guy if he was using audio.

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?