The Free Citizen as a Nuisance

"I'm willing to admit that the policeman has a difficult job, a very hard job. But it's the essence of our society that the policeman's job should be hard. He's there to protect, protect the free citizen, not to chase criminals, that's an incidental part of his job. The free citizen is always more of a nuisance to the policeman than the criminal. He knows what to do about the criminal." - Orson Welles

Orson Welles said these words in a 1955 BBC program called Sketchbook, during which he spoke of, among other things, the role of police. In light of a string of arrests made by Massachusetts police under the state's wiretapping law, his words seem especially relevant. The free citizen—in this case, the individual recording public law enforcement—is unfortunately considered a nuisance, and a law created to protect the free citizen is now being used against him.

That law is the Massachusetts wiretapping statute, MGL Ch. 272 § 99. Its preamble clearly outlines two goals: To allow law enforcement to listen to the private conversations of those suspected of organized crime, and to protect everyone else from having their private conversations recorded. To protect those private conversations, the law requires all parties to consent to the recording. That means, for example, a reporter cannot legally record a telephone call unless the source on the other end gives permission to do so. (There is an exception for police investigations; a police officer can record a conversation if he/she is a party to the converstation or obtains the consent of one party to the conversation. See § 99(B)(4) (defining "interception").) Most states, however, allow recording with only one party's consent. But not Massachusetts, and that's how those like Simon Glik end up in jail.

Boston police arrested Glik in 2007 when he began recording three officers struggling to pull a plastic bag from a teenager's mouth during an apparent drug bust. Thinking that the force used by the officers might have been excessive, Glik, a lawyer, used his cellphone camera to record the incident as it played out in public view near Tremont Street. Finding his curiosity to be a distraction, the officers arrested Glik under the wiretapping statute because his recording captured audio, and they hadn't consented. See, police are trained on how to make a drug bust and how to treat a criminal. They are not trained on how to treat a law-abiding citizen whose camera phone may be distracting or embarrassing. That citizen, like Glik, is the nuisance referred to by Welles.

An article last week in the Boston Globe suggests that such arrests are becoming increasingly common. It's unfortunate. The recording of a public arrest is clearly not one of the "grave dangers to the privacy of all citizens" the authors of the wiretap law sought to prevent. A court eventually dismissed the charge against Glik, finding that using a camera in plain sight doesn't constitute a "secret" recording as required by the statute. Still, the freedom to openly record is not enough. Those who secretly record, like Michael Hyde, are still vulnerable.

Hyde used a hidden device to record the police who pulled him over in 1998. For reasons that aren't clear, the officers ordered Hyde from his vehicle and began to search him. Hyde and the officers exchanged profanities, but the officers let him go. Upset about the incident, Hyde filed a complaint with the Abington, Massachusetts police department and provided the recording to support his claims. A subsequent internal investigation exonerated the officers of any misconduct, and the department filed a criminal complaint against Hyde for violating the wiretap law. The Supreme Judicial Court upheld the conviction because Hyde made the recording secretly.  Professor Eugene Volokh put it well when he criticized the result of the Hyde decision: "the law aimed at protecting privacy ends up wrongly restricting people's liberty, and people's ability to protect themselves against police misconduct."

The wiretap law reasonably protects private individuals with an expectation of privacy from having their conversations recorded. But it should stop there. It shouldn't bar the recording, even if done secretly, of anyone acting without an expectation of privacy or carrying out a public duty (at least theoretically) in the public interest. Both of these conditions apply to police officers. Whether pulling a car over on a public road or pulling a bag out of a teenager's mouth in the middle of a street, police have no expectation of privacy. They are acting in public and—by definition—in the public interest. There are strong First Amendment grounds to support recording in these circumstances and Massachusetts should acknowledge them. (Read a recent law review note on the topic here.)

Police know what to do about the criminal: Use the wiretap law how it was intended and gather evidence of organized crime. It's what to do with the camera toting, though law abiding, citizen that seems to baffle them. Here's a suggestion: Leave him alone. There is little doubt that recording the police will make their jobs more difficult, perhaps even very hard. But, like Welles said, the policeman's job should be hard. They are responsible for protecting the freedom of citizens even when they consider that freedom to be a nuisance.

(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School.  Justin founded the Media and Communications Law Society and its blog at Suffolk Law in 2009.)


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