Wednesday, January 13, 2010

Police hide behind privacy statutes

The Boston Globe yesterday had an article about Boston police using a Massachusetts privacy law (Mass. Gen. Law 272 section 99) that requires both parties' consent to audio or video-recording. The statute, similar to those in eleven other states, makes it illegal to record another without their consent. This meant that when Simon Glik, a lawyer in Boston, felt that he was seeing undue police violence in an arrest and began to record it with his cell phone, the police felt justified in confronting Glik, cuffing him and seizing his cell phone. And it meant that when Jon Surmacz saw police being too rough breaking up a party and began recording it with his cell phone, the same thing happened to him, charged with illegal surveillance. The Globe article is notable as being actually the product of a student co-op project at Boston University, though it covered many column inches of the front page of the paper and inside the front section as well. It's an important topic.

Both men, with the help of the ACLU, got the charges dismissed, eventually (Glik dismissal in PDF). But the mis-use of state statutes that were passed in the wake of private detectives taping individuals who had no idea of the surveillance, in order to stifle citizen push-back against police brutality is very troubling. I am very proud that Massachusetts' Chief Justice Margaret Marshall filed a strong dissent in one of the cases that went to court on this matter. Mass. v. Hyde, 750 N.E. 2nd. 963, 977 (Mass., 2001), raising the question of possible First Amendment implications in interpreting the wiretapping statute to bar citizens from recording police misconduct.

The entire matter in Massachusetts has been closely examined in a law review article which is available at Suffolk's website: Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, a 2009 note by student Lisa Skehill at 42 Suffolk U. L. Rev. 981. This article has very helpful links to newspaper and law journal articles, but mainly focuses on Massachusetts. For a student article, it takes quite a normative stance on the matter. There is also an ALR annotation that surveys state statutes on the matter, but I cannot give a link to that, only a citation, 74 ALR2d 855, Validity, Construction and Effect of State Statutes Making Wiretapping a Criminal Offense. Here is an online link to "Can We Tape?", a 50-state survey from the Reporter's Committee for Freedom of the Press.

The twelve states that have similar privacy laws requiring all parties' consent appear to include California (Cal. Penal Code §§ 631, 632, requiring ALL parties' consent), Connecticut (Conn. Gen. Stat. § 52-570d requiring ALL parties' consent), Florida (Fla. Stat. ch. 934.03, requiring all parties' consent), Maryland (See Bodoy v. North Arundel Hosp., 945 F.Supp. 890 (D. Md. 1996). Additionally, recording with criminal or tortuous purpose is illegal, regardless of consent. Md. Code Ann., Cts. & Jud. Proc. § 10-402), Massachusetts (Mass. Ann. Laws ch. 272 , § 99, requiring all parties' consent), Michigan (Mich. Comp. Laws § 750.539c), Montana (Mont. Code ann. § 45-8-213-c), Nevada (Nev. Rev. Stat. Ann. § 707.900 - misdemeanor recording without consent of all, but surreptitiously listening, recording or disclosing a conversation without consent carries heavy fines of $1,000 or $100/day, whichever is higher, and punitive damages, plus court costs, Nev. Rev. Stat. Ann § 200.630, .650), New Hampshire (N.H. Rev. Stat. Ann. § 570-A:2-I, requiring all parties' consent), Pennsylvania (18 Pa. Cons. Stat. § 5703(1), requiring consent of all parties), Texas (V.T.C.A, Civil Practice & Remedies Code § 123.001, et seq. allows civil actions to recover stiff damages, but Texas Penal Code § 16.02 allows recording by a party or with the consent of one party, so long as there is no tortious or criminal intent), Washington (Wash. Rev. Code § 9.73.030 requires consent of all parties, though can can be satisfied by one party announcing to all in any reasonably effective manner that communication or transmission is about to be recorded or transmitted, and that announcement is recorded or transmitted as well, Wash. Rev. Code § 9.73.030).

The decoration is courtesy of the Police Brutality Databank, which is a pretty good link to know about in this context,

Here are earlier comments and blog posts on this matter: Jan. 13, 2010, which led me to:, Jan. 29, 2008, evidently, an excerpt of a Massachusetts Lawyers' Weekly newspaper story from the time. It notes that Glik is a Moscow-born attorney, which makes his push-back against the police more poignant. It also reminds me to explain to my OOTJ readers that our Massachusetts Chief Justice, Margaret Marshall, comes from South Africa, where she was an anti-apartheid activist before she emigrated here. So her dissent in the Hyde case carries a special force. She understands on a personal level the importance of free citizens pushing back against the force of government when it is used unjustly.

1 comment:

Betsy McKenzie said...

Another commentary on the Massachusetts wiretap statute and police mis-use of its coverage can be read at

The author, Justin Silverman, is a former student in my Advanced Legal Research class. I am very pleased to see him blogging on this exciting media law project.