Over at the VC, Eugene Volokh has an excellent post criticizing convictions of individuals under state wiretapping laws for secretly recording their encounters with the police. He quotes Commonwealth v. Hyde, 750 N.E.2d 963 (Mass. 2001), which states:
This case raises the issue whether a motorist may be prosecuted for violating the Massachusetts electronic surveillance statute … for secretly tape recording statements made by police officers during a routine traffic stop. A jury in the District Court convicted the defendant on four counts of a complaint charging him with unlawfully intercepting the oral communications of another …. We conclude that [the state interception law] strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter.
The Massachusetts electronic surveillance law at issue in Hyde requires that all parties to a communication consent if it is to be wiretapped or bugged. Many wiretapping laws permit wiretapping or bugging if one party to the communication consents. So if you’re secretly recording your own conversations with others, it is ok since one party (you) is consenting. The federal Electronic Communications Privacy Act is a one-party consent statute. But several states require that all the parties to a communication consent. Such is the law in Massachusetts.
So there you have the dark side of “privacy” — the law aimed at protecting privacy ends up wrongly restricting people’s liberty, and people’s ability to protect themselves against police misconduct.
Eugene and I often disagree on privacy issues, but on this one, I strongly agree with him. The court’s interpretation of the electronic surveillance law strikes me as contrary to reasonable public policy. When government officials are performing their public functions, it strikes me as inapt to say that they have “privacy.” Instead, they may operate in secrecy, but that’s not the same thing as privacy. Privacy is misused when government officials claim it to perform their official functions — it then becomes nothing more than an argument to keep important information from public scrutiny and public accountability.
Many electronic surveillance laws do not make exceptions for recording one’s own encounters with the police or with other government officials. They should. Obviously, such laws should protect against someone who secretly wiretaps a government official’s phone and listens in on all of that official’s conversations. But the laws should not prohibit a citizen from recording her conversations and encounters with government officials when they are engaged in their official duties.
Unfortunately, the majority in Hyde chose to interpret the law rather strictly. It didn’t have to do so. Consider the argument of the dissent:
The purpose of G.L. c. 272, § 99, is not to shield public officials from exposure of their wrongdoings. I have too great a respect for the Legislature to read any such meaning into a statute whose purpose is plain, and points in another direction entirely. Where the legislative intent is explicit, it violates a fundamental rule of statutory construction to reach a result that is plainly contrary to that objective. . . . To hold that the Legislature intended to allow police officers to conceal possible misconduct behind a cloak of privacy requires a more affirmative showing than this statute allows. . . .
The statute, on its face, makes no exception for members of the media or anyone else. Had Michael Hyde, the defendant in this case, been a news reporter he could have faced the same criminal consequences that the court now sanctions. If the statute reaches actions by police officials acting in their public capacities in the plain view of the public, the legitimate news gathering of the media is most assuredly implicated.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.