In the final part to my article on the important new role of video in civil rights enforcement, I considered what I called the “front-end” question of whether government can prohibit or limit surreptitious recording (audio and/or video) of public encounters with public officials, particularly law enforcement. I argued that there should be a First Amendment liberty to record such encounters (which a handful of lower federal courts have recognized), grounded in either a vision of the Free Press Clause as protecting the gathering of information for dissemination or in the Petition Clause as protecting a right to gather potential evidence for litigation.
Of course, the constitutional issue does not arise in most states, because wiretap laws require that the person recorded have a legitimate expectation of privacy in the conversation, which typically excludes law-enforcement officials in the course of performing their duties. So people are rarely arrested or prosecuted for surreptitious recording of police encounters, whether their own or those that they witness.
But several states have broader wiretap/eavesdropping laws, which prohibit all unconsented-to recordings involving any person in any circumstance (unless the person doing the recording is from law enforcement). One of these state is Massachusetts, whose law was upheld in 2001
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I was admitted to the MA in 1954. I made it a practice to review with care new MA statutes enacted that might impact upon my law practice. I recall when I received the West Publishing publication on new statutes in 1968 the “headline” for the MA wiretap statute (which apparently does not factor into construing or interpreting the statute); it included a reference to and stressing “organized crime.” Upon reading and rereading the new statute, I was surprised with the provision requiring the consent of all parties to a conversation. I wondered how exactly this served the war on organized crime? Then it dawned on me that perhaps the MA legislature was protecting its own members (among others in the public sector). MA was out of step with most other states which seemed to follow the federal one-party consent. I don’t know if Illinois’ statute preceded or followed the MA statute. But I recall that Illinois, as well as MA, had had a history of public corruption problems. So apparently the MA legislature was not concerned with “unorganized crime.”
Howard, it’s freezing here in the Boston area and I dare not go out for newspapers. So I downloaded your article and plan to read it, especially Part V, to keep me busy today.
Posted by: Shag from Brookline | Jan 24, 2011 11:38:31 AM