As bicyclist Eli Damon tells the story, a police officer pulled him over on March 20 as he rode his bike in Hadley, Massachusetts. The officer cited him for failing to keep to the right side of the road, and while issuing a ticket for the offense he noticed a camera on Damon's helmet. The officer "told me that by recording his voice without explicitly warning him of it," Damon later said, "I was violating federal wiretapping law."
Because federal law permits the recording of in-person conversations with the consent of only one of the parties (see 18 U.S.C. 2511(2)(d)), it's likely the officer had instead meant to cite state law. The Massachusetts wiretapping statute, MGL Ch. 272 § 99, makes it a crime to secretly record an in-person conversation without the consent of all parties to the conversation. Because the statute only addresses secret recordings, those made with a camera in plain sight fall outside the restriction. A 2001 decision by the Massachusetts Supreme Judicial Court made clear that recording police openly does not violate the wiretapping law, and lower courts consistently have recognized that exception. Still, Massachusetts police are charging individuals under the statute despite their cameras being in what most would agree is plain view.
Damon's camera was secured to the side of his helmet. "I said that I was not being secretive since the camera [was] in plain view, right next to my face," Damon said."He demanded that I turn off the camera and hand it to him so he could hold it as evidence." The officer, he said, “continued to talk to me about how serious a crime I had committed with the camera.”
A court will likely dismiss the charge if Damon can prove he recorded the police in an open, non-secretive manner. It appears to be a relatively easy case to make given the camera's location and the officer noticing it on his own — facts that don't exactly smack of secrecy. Since the SJC’s ruling in Commonwealth v. Hyde, 750 N.E.2d 963 (Mass. 2001), lower courts have considered such factors in similar wiretapping cases. Simon Glik openly recorded officers with his cellphone in 2007 as they conducted a drug arrest in Boston. The charge was ultimately dismissed. The same for John Surmacz who was arrested after he openly recorded police breaking up a holiday party in Brighton in 2008. Police arrested filmmaker Emily Peyton in 2007 after she recorded officers in Greenfield detaining an anti-war protester. Once she established that the recording occurred openly, the state dropped the charge.
This all stems from the plain language of the statute, which defines illegal wiretapping as to "secretly hear" or "secretly record," and from persuasive dicta in the Hyde opinion. That court heard the case of Michael Hyde, a motorist who secretly taped police after they pulled him over during a routine traffic stop. In upholding Hyde's conviction under the wiretapping statute, the SJC said that the law "strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter." See Hyde, 750 N.E.2d 963 (Mass. 2001) But the court added, "the problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight. Had he done so, his recording would not have been secret, and so would not have violated G.L. c. 272 § 99." Id. (More on Hyde here.)
As of last year, only 12 state wiretapping statutes required the consent of all parties to a conversation before a recording could occur. Pennsylvania may have the most strict law, forbidding even police from recording the conversation of others. 18 Pa. Cons. Stat. § 5703 (link is to the entire code, choose Title 18, Part II, Article F, Chapter 57, Subchapter B, and then the specific provision.)
Of the states that require the consent of only one party, most still bar recordings when there is an expectation of privacy. But, generally, this does not include police activity in public places or conversations recorded while gathering news. Colorado’s wiretapping statute, for example, states that it should not be “interpreted to prevent a news agency, or an employee thereof, from using the accepted tools and equipment of that news medium in the course of reporting or investigating a public and newsworthy event.” Colo. Rev. Stat. § 18-9-305.
Massachusetts doesn’t have such an exception, a point made by the dissent in Hyde: “Had Michael Hyde, the defendant in this case, been a news reporter he could have faced the same criminal consequences that the court now sanctions. If the statute reaches actions by police officials acting in their public capacities in the plain view of the public, the legitimate news gathering of the media is most assuredly implicated.” Fortunately, the ability of journalists to record public events without asking for consent is firmly settled in First Amendment law.
Still, the inconsistency in the law’s enforcement is extremely concerning, especially given the body of legal support for open recordings. With such authority clearly stating that these recordings are not illegal, why then do police continue to make wiretapping arrests of individuals whom appear to be recording in plain sight? Perhaps it’s out of ignorance — are officers informed of court decisions that conflict with their definition of "plain sight"? Or, maybe it’s arrogance — would these officers care or would they continue to consider the statute as a means of punishing “citizen nuisances”? Whatever the reason, they are plainly misconstruing the law.
June Jensen, the lawyer who represented Glik, agrees, at least in the case of Boston Police. “You could go to the Boston Common and snap pictures and record if you want,” she said. “You can do that.” But until the law is changed or the definition of "plain sight" is further refined, you risk arrest by doing so. Glik and the ACLU have sued the Boston Police in a federal civil rights lawsuit.
As Glik, Surmacz, and Peyton found out, the only recourse that now exists is to battle the charge in court, a potentially expensive and lengthy endeavor. Surmacz needed five months and the help of the American Civil Liberties Union to get his charges dismissed. If Damon contests the charges against him, how long will it take for the court to say what police should already know?
(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school's Suffolk Media Law student group and its SuffolkMediaLaw.com blog in 2009.)