Federal Court Says Massachusetts' Wiretap Law Can't Be Used To Arrest People For Recording Public Officials

from the because-duh-this-was-decided-seven-years-ago dept

Seven years ago, the First Circuit Court of Appeals released its Glik decision. This decision found that recording public officials was protected by the First Amendment, overriding Massachusetts state law. The state wiretap law says recordings must have consent of everyone captured on the recording. The Appeals Court said recording police officers while they performed their duties in public was clearly covered by the First Amendment. The opinion also dealt with some ancillary Fourth Amendment issues, but seemingly made it clear these recordings were protected activity.

The law remained on the books unaltered. Thanks to legislative inaction, the law is still capable of being abused. Since the Appeals Court didn't declare the law unconstitutional, or even this application of it, it has taken another federal court decision nearly a decade later to straighten this out. (h/t Courthouse News Service)

The ruling [PDF] deals with two First Amendment cases. One deals with activists recording cops. The other deals with another set of activists -- James O'Keefe's Project Veritas -- and its secret recording of Democratic politicians. The specifics might be a bit different, but the outcome is the same: recording public officials is protected by the First Amendment. The state law is unconstitutional.

Consistent with the language of Glik, the Court holds that Section 99 may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions.

That just reiterates Glik's findings. The Massachusetts federal court goes further, though:

The Court declares Section 99 unconstitutional insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions. The Court will issue a corresponding injunction against the defendants in these actions.

The court also points out the state government's response to the Glik ruling was wrong. The ruling did not limit itself to "openly" recording public officials. It said the First Amendment protected the recording of public officials performing public duties whether or not government officials knew they were being recorded.

In October 2011, the bulletin was accompanied by a memo from the Commissioner citing the Glik decision. The memo instructs officers that “public and open recording of police officers by a civilian is not a violation” of Section 99. The cover memo for the May 2015 recirculation “remind[s] all officers that civilians have a First Amendment right to publicly and openly record officers while in the course of their duties.”

[...]

But Glik did not clearly restrict itself to open recording. Rather, it held that the First Amendment provides a “right to film government officials or matters of public interest in public space.”

The court says siding with the government's interpretation would just result in more bogus arrests under the state's wiretap law.

But the training materials go beyond telling officers when it is impermissible to arrest; taking a narrow construction of Glik, they also communicate that it is permissible to arrest for secretly audiorecording the police under all circumstances. In other words, it gives the green light to arrests that, as the Court holds below, are barred by Glik.

This ruling should put an end to that. You'd think the last ruling would have done the job, but despite the Appeals Court never ruling that secret recordings of public officials were illegal, the state decided to interpret the decision this way, leading directly to the lawsuits requiring the record to be set one more time, seven years down the road.


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  • identicon
    Anonymous Hero, 13 Dec 2018 @ 4:37am

    Better late than never

    We might have been a little slow on the draw, but you can usually count on MA to do the right thing. Heck, our republican governor is to the left of many Democrats.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Dec 2018 @ 4:45am

    Now to see the reversal of everyone convicted of this

    I will wait now to see how long it takes MA to overturn any convictions that may have resulted from this unconstitutional law. I bet I am long dead before they all get reversed.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 13 Dec 2018 @ 4:50am

    Frankly,

    I don't get how secretly recording government officials is a protected way of expressing yourself. Nevertheless, drawing the line there would open a quagmire. "La la la, I don't see your camera, la la la. You are under arrest for recording me with a camera I cannot see."

    While I don't really get the relation to the First Amendment, it's sort of a no-brainer that the people should be able to take records of public servants (their employees) while they are performing their job in public.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Hero, 13 Dec 2018 @ 6:07am

      Re: Frankly,

      It would've been much more amusing if, instead of relying on the First Amendment, they could've used the Third-Party Doctrine, claiming that public places were the Third-Party.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Dec 2018 @ 6:36am

      Re: Frankly,

      it's sort of a no-brainer that the people should be able to take records of public servants ... performing their job in public.

      Yeah, and that's all the court ruled. Contrary to this story's title, the law could still be used to arrest people for actual wiretapping of public officials.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 13 Dec 2018 @ 8:09am

      Re: Frankly,

      It actually tags to the way the courts have formed journalism freedoms in the 1st amendment. To protect journalistic expression, you need to also protect acts of journalism.

      In the words of the internet: "Pics or it didn't happen". In the words of wisdom past: "A picture is worth a thousand words". And in the words of journalists to the current President: "Seriously? You said that five minutes ago, there are at least 20 recordings, audio and video. You can't just say you never said that."

      Journalism requires evidence. That is all the more important in the alternative facts, truth isn't truth era. You can't protect Journalism's ability to speak truth to power if power needs to agree to being held accountable.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Dec 2018 @ 8:55am

      Re: Frankly,

      You realize the 1st Amendment covers more than freedom of speech, right?

      reply to this | link to this | view in chronology ]

    • icon
      Hugo S Cunningham (profile), 13 Dec 2018 @ 9:16am

      Re: Frankly,

      The relevant First Amendment text is the right of the people "to petition the government for a redress of grievances." A petition against police misconduct is taken a *lot* more seriously if it is backed up by recorded evidence.

      reply to this | link to this | view in chronology ]

  • identicon
    Paul Clark, 13 Dec 2018 @ 6:38am

    One More TIme ...

    If you are in public anywhere in the world these days, you are being filmed and/or recorded. If you do anything interesting, amusing, or asinine, the video of your actions will be uploaded to Youtube within 5 minutes.

    Enjoy your 5 minutes of fame.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 13 Dec 2018 @ 7:07am

    Reasonable

    ...>subject to reasonable time, manner, and place restrictions."

    Did they define reasonable? Did they specify the time, manner and place restrictions? I bet that Massachusetts legislators do something funky with this loophole that the courts left dangling.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 13 Dec 2018 @ 7:21am

    The memo instructs officers that “public and open recording of police officers by a civilian is not a violation” of Section 99. 

    However, the court also ruled that the right to film public officials was subject to reasonable limitations with respect to the time, place and manner in which the recording was conducted.

    I hate to disillusion anyone, but section 99 is not done yet. The new memo will just say something like, "public and open recording of police officers by a civilian is not a violation unless the officer reasonably believes the time or place or manner of recording makes it a violation."

    Still a "license to kill."

    reply to this | link to this | view in chronology ]

    • identicon
      Paul Brinker, 13 Dec 2018 @ 10:30am

      Re:

      The officer needs to make his orders neutral in regards to filming. This could mean setting the public barricade back around the street corner instead of 30 to 60 feet (As per the manual).

      This is also how you get absurd situations like cops telling people to back up right up to a private property line and the person asking "are you ordering me onto private property?" then getting arrested for disobeying an order. (The officer would arrest the person for trespassing if they kept backing up)

      Note that all charges are dropped, but they are still able to prevent filming by doing shit like this.

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 13 Dec 2018 @ 8:01am

    The state's interpretation is facially absurd here. A wiretap, by the very nature of the word, requires two specific things: a "wire" (a device creating a communications channel between two or more individuals that provides an expectation of privacy) and a "tap" (a device that breaks the privacy afforded by the wire). Even if we say (as we should!) that the wire should not be understood only as a literal length of wire, when there is nothing at all creating a private communications channel, then there's no way to violate that nonexistent privacy.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Dec 2018 @ 10:05am

      Re:

      The state's interpretation is facially absurd here. A wiretap, by the very nature of the word, requires

      The state didn't say anyone was "wiretapping", did they? Perhaps it's odd that a "wiretapping" law has unlimited scope, but it's near-universally true. Legislators writing a "wiretapping" law can define the term however they wish, and even then, can prohibit/regulate completely unrelated things within the text of the law. There's no rule that laws have to be about one topic; you are expected to read every line of every law, even ones that look completely unrelated to you (if a state banking law has an obscure provision regulating the sale of sugary drinks, and you run a restaurant, your ignorance of it is no excuse).

      reply to this | link to this | view in chronology ]

      • identicon
        Paul Brinker, 13 Dec 2018 @ 10:46am

        Re: Re:

        Not quite how it works, Federal laws you are correct, there are basically no limits to what can be in a federal bill.

        States often have comprehensive rules that use language like "This supersedes all existing rules on topic X". For example the electrical code (and its updates) often use this language. This means you cant hide a sugary drink rule in that section of the law.

        Next, many states have single purpose rules for law making in the state constitutions. This actully does protect you from being charged under the electrical code when your conduct has nothing to do with the electrical code.

        None of this however protects you from treaty violations. The most classic being sold some fish in clear plastic bags. (The bags being used to show that correct tax was paid). We agree to enforce laws of our treaty partners even when actions take place only in the US.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 Dec 2018 @ 12:51pm

          Re: Re: Re:

          This actully does protect you from being charged under the electrical code when your conduct has nothing to do with the electrical code.

          It's a good idea but I wonder how far they could stretch that. The Feds famously claimed that possession of certain drugs within a state, for personal use (not sale), is "interstate commerce". Could a state claim anything done on an electrical device, like a computer, is within the scope of the electrical code? (Luckily, such codes are usually regulation rather that law, and the actual laws tend to limit the scope.)

          reply to this | link to this | view in chronology ]

          • icon
            Tanner Andrews (profile), 14 Jan 2019 @ 5:47am

            Re: Re: Re: Re: [interstate commerce]

            The Feds famously claimed that possession of certain drugs within a state, for personal use (not sale), is "interstate commerce"

            Sure, and there is precedent for it. In Wickard v. Filburn, 317 U.S. 111 (US 1942), the Court held that growing wheat for your own use was interference with interstate commerce. The theory was that, if you grew your own wheat, you were then not purchasing it in interstate commerce.

            Sure, it was a bad decision when it was made. But since that time, it has provided ample opportunities for abusive expansion of government power, and truly there seems to be little limit. Federal littering charge? Sure, if the material crossed a state line (or competing vendors' material crossed state a state line). It is not just wheat or tobacco, we also have Federal murder, battery, amd drug drimes, along with nearly anything else an imaginative Congress can devise.

            One stupid decision. A cascade of ill effects. Leading to the question, "Whether the Supreme Courtourt purchased drugs which had traveled in interstate commerce, where they issued the Wickard decision".

            (additional question, whether the people who suggested using this "markdown" instead of HTML were using the same, where "markdown" is known to eliminate real quotes and do other irksome things)

            reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 13 Dec 2018 @ 11:31am

      Re:

      Much as the original CA "Hands Free" law around cellphone use didn't actually require you keep your hands free anywhere in the law (it required the use of one of several types of tools marketed as hands free devices that allowed you to answer calls without touching your phone to use the phones while driving), the Wiretapping law doesn't define Wiretapping in the strict terms of tapping a wire.

      A bug hidden in a lamp, for instance, while different operationally, is quite similar to a wiretap in terms of result. As is a recording device that didn't tap the secure wire but unknown to one party recorded in the input and output on the other end. It might not even call any of this a 'Wiretap' in the text of the law. It is just called the 'wiretap' law because the actual name is long and cumbersome. Much as we say "Title II authority" when what we mean is "Title II authority under the Comunications Act of 1934 and Section 706 Authority of the Telecommunications Act of 1996"

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Dec 2018 @ 8:05am

    Why does law enforcement feel the need to censor any account(s) of their public activities? Is there something they feel the need to hide from public view? Or maybe hide from the courts .. that previously told them to stop.

    reply to this | link to this | view in chronology ]

  • identicon
    Kitsune106, 13 Dec 2018 @ 8:40am

    Probably a good thing

    Since it opens up too many can of worms. and there is the felony addition, which can add to things.

    Like, what if there are hidden cameras in a mall? Would that be a secret recording? Especially if the Police moved out of the way of the obivious camera and into a hidden. And what makes it secret? What if a drone they don't see catches it?

    Its more, the fact that they don't have to be correct on what law says to be immune for ruining a day, makes it more likely it will be abused. And given the weight we give officers in court. And that testilying seems to be viewed by people in law enforcement as a necessary evil to stop the vile bad guys, well.

    This did not happen overnight.
    Also, suprirsed we have not had constitutional originalists say it cannot matter. as back then, video was not around ,thus obiviously, the first amendment cannot apply.

    reply to this | link to this | view in chronology ]


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