Activists Sue For The Right To Secretly Record Police

A pending lawsuit filed by the ACLU challenges a Massachusetts law that arguably bars people from secretly recording police activities. Massachusetts is one of 11 states with “two-way consent” laws, which means anyone wishing to record a conversation must obtain permission from everyone participating in the conversation. The ACLU says this law restricts the ability of activists and others to monitor police behavior through the prospect of surreptitious recording. Morning Edition’s Joe Mathieu spoke with WGBH News Legal Analyst and Northeastern Law Professor Daniel Medwed about the law, the nature of the ACLU’s legal claim, and recent developments in the case. The transcript below has been edited for clarity.

Joe Mathieu: So, first of all tell us about this law that's being attacked by the ACLU.

Daniel Medwed: Sure, passed in 1968, the Massachusetts wiretapping statute — which is known as section 99 — criminalizes the secret audio recording of people's conversations. Massachusetts is one of 11 states across the nation that has a law like this. They're called two-way consent laws, which basically means you have to get the permission of everyone in the conversation to record it. And it's a pretty significant law. If you're convicted under section 99, you could be subject to up to five years in prison. Now, I want to be clear about the context of police recordings. You are allowed under the First Amendment to openly and transparently record police activities, but some civil rights organizations think that doesn't go far enough to clamp down and deter police misconduct, that it's really the prospect of surreptitious secret recording that can do that trick.

Mathieu: Daniel, have police actually enforced this have they arrested people for this reason?

Medwed: That's a great question. According to the ACLU filings, over the past seven years, the Boston Police Department has issued criminal complaints under section 99 in nine cases involving claims of secretly recording the police. And the Suffolk County DA's office has pursued prosecution, at least past the arraignment stage, in four cases.

Mathieu: We're talking with WGBH Legal Analyst Daniel Medwed. What now are the exact legal grounds for the lawsuit?

Medwed: Basically, the ACLU claim is grounded in the First Amendment right to free speech. Specifically, the ACLU is representing two civil rights activists, Eric Martin and Renee Perez, who claim that they want to secretly record the police but they're scared to do so because of a credible threat of arrest and prosecution. In the eyes of the ACLU, this is an unconstitutional infringement on the right to free speech under the First Amendment, and there is no countervailing government interest that would justify this type of restriction.

Mathieu: So let's look at this from both sides for a moment, Daniel, what's the argument on the other side of this?

Medwed: Well there are quite a few arguments. I'm not sure how good they are, but in terms of procedure, there's a claim that Martin and Perez here lack standing to sue. They haven't been arrested yet under section 99. So arguably they haven't been injured and the case isn’t ripe for court.

Another procedural claim is that city and county agencies like the BPD and the Suffolk County DA’s office, they shouldn't be sued for damages in a civil rights action simply for enforcing a state law that they lack the capacity to dismantle. It's not like this is an official customer policy of the BPD or the Suffolk DA's office.

Now in terms of substance, the First Amendment claim, perhaps the strongest argument for the defendants relates to the privacy interests of third parties. It's one thing to secretly record the police who are public figures, they act in the public domain, they're public servants. But what about private citizens who might be captured on those recordings? Say somebody surreptitiously records the police making an arrest. What about that arrestee? What if that arrestee doesn't want to be recorded and have that broadcast disseminated?

Mathieu: So where is this lawsuit right now? What’s the status of the case?

Medwed: Well, we're right in the thick of it. Actually last Thursday there was a hearing in federal court on a couple of motions for summary judgment. Both sides filed a motion asking the court to enter an order in their favor without even going to trial, based on the idea that there is no genuine issue in the case. I anticipate that the court is going to reject those motions, simply because it's very hard to prevail on a motion for summary judgment, and the case will probably march or more likely meander to a trial posture. At least that's my educated guess.