Massachusetts SJC Should Revoke Ban on “Secret” Recording of Police

We live in the Age of Information; the Age of the smartphone.  An age in which the activities of almost every citizen are monitored by sources both public and private  – including your own cell phone, debit cards and credit cards.

Some examples we may not care to think about, but as a Massachusetts criminal defense lawyer, I can assure you of the following:  Your vehicle is tracked by video cameras run by government – local, state and federal government agencies –at intersections, on the Massachusetts Turnpike, and many highways.  Your own smart phone monitors your locations, tracking you wherever you go and whenever you go.  Numerous apps that you might use on your phone also – perhaps unbeknownst to you – track your movements and location.  When you are stopped at roadside by a police officer, an increasing number of police cruisers record the stop on both video and audio, via either dash-cameras or body cameras.  When you pay for a product at a store with a debit or credit card, that card also tracks where you were, and when. Your movements inside the store are recorded by video cameras.  Your movements outside the store are also being video recorded.

Thus, it might surprise you to learn that if someone were to video record a police officer during some type of event – without informing the officer(s) that their actions were being recorded – the person recording the event is subject to criminal prosecution and imprisonment.  Yes, you read that correctly.  You can get up off the floor now.  No one in all of the above examples needs to tell you that you are being video recorded, but you must tell the police if you are recording them.

M.G.L. Chapter 272, Sec. 99 (otherwise known as the state wiretap statute,) expressly makes it a criminal offense to “secretly” “intercept” any person’s speech. In so doing, Massachusetts belongs to a number of sates called “two party” states, when it comes to recording someone else’s words or actions. Court rulings on this statue have held that this prohibition is valid, even if that speech were intended for public consumption.  That ruling was outlined in Commonwealth v. Hyde, 434 Mass. 594 (2001).  I don’t want to turn this post into a complex legal analysis of law as most of my readers aren’t attorneys, but suffice to say that the basic facts are as follows:

Almost 20 years ago, in 1998, a 28 year man by the name of Michael Hyde was stopped by Abington police for opearting his car with a loud exhaust pipe and a defective license plate lamp.  A friend of his, named Daniel Hartesty, was his passenger in the front seat of the Porsche.  Three additional police officers arrived, and ordered Hyde and Hartesty out of the car; Hartesty was frisked. An officer reached into the car to open a plastic bag on the car floor, which had only CDs in it.  Clearly, these two men were being treated as though they were engaging in some type of serious criminal activity, when they had committed no crimes.

Annoyed, Hyde commented that the stop was “a bunch of bulls—.” In response, one of the officers called him an “a–hole.” Another officer asked Hyde if he  had any “blow.” The situation was unraveling, quickly.  Finally, after about 20 minutes, the officers allowed both men to leave, without being cited for any crimes.

It didn’t end there.  And I’ll discuss why this case is important almost 20 years later, in my next post.