Cloaking police misconduct in privacy: why the Massachusetts anti-wiretapping statute should allow for the surreptitious recording of police officers.

• Author: Skehill, Lisa A.

"The public should know what is going on. It has a right to know in detail what its guardians are doing in order that it may intelligently conclude as to whether they should be discharged, or slapped on the back with approval and have their pay raised. And the police on their part need the understanding of the public. They are thrown inevitably into close association with the seamy side of life; they are hired to control it. They need, therefore to become acquainted with the great, wholesome public. They need the spirit which they will gather from it to carry them through the trying, tempting days when they are wrestling with the outlaw." (1)

1. INTRODUCTION

   One may only speculate why police pulled over Michael Hyde on October 28, 1998. (2) Perhaps they were suspicious of the flashy Porsche he was driving, his long hair, his car's excessively noisy exhaust, or perhaps they were just bored. (3) When all was said and done, however, the reason Hyde was pulled over did not matter; he was convicted of a crime. (4)

   After being pulled over, for reasons that are still not entirely clear, Hyde began to secretly record the officers' statements with a tape recorder. (5) Police officers ordered Hyde and his passenger out of the vehicle and searched both men. (6) As the search of both men and the car ensued, the exchange between Hyde and the officers became heated, both parties used profanities, and the officers threatened to throw Hyde in jail. (7) Unable to find any contraband in the car and recognizing that the stop had gotten out of hand, the officers let Hyde go with a verbal warning for excessively noisy exhaust. (8)

   Six days later and still distraught over the incident, Hyde went to the internal affairs division of the Abington Massachusetts police department and made a formal complaint. (9) To substantiate his claim, he provided internal affairs with the tape recording he made. (10) The Abington police investigated the matter and petitioned for a criminal complaint. (11) To Hyde's dismay, the criminal complaint was not for the officers that pulled him over; it was for him. (12)

   The crime? Violation of the Massachusetts Anti-Wiretapping Statute by recording the police officers without their consent. (13) The surreptitious recording of the police officers who pulled him over resulted in Hyde's conviction. (14) Affirming his conviction, the Massachusetts Supreme Judicial Court (SJC) announced that Massachusetts's Anti-Wiretapping Statute does not provide an exception for surreptitious recordings when the person being recorded has no reasonable expectation of privacy. (15)

   The Massachusetts Legislature specifically enacted the anti-wiretapping statute to protect private citizens from secret recordings. (16) Massachusetts's ban on undisclosed electronic surveillance is significantly more rigid than its federal counterpart. (17) Like the federal anti-wiretapping statute, the majority of state anti-wiretapping laws allow for one-party consent recordings. (18) To satisfy the one-party consent requirement, only one party to the conversation must consent to the recording. (19) In contrast, the Massachusetts statute requires that all parties consent to the recording. (20)

   Hence, the surreptitious recording of a police officer, similar to the one made by Hyde, would be free from prosecution in most other jurisdictions. (21) Interestingly, Hyde would also likely have been free from prosecution had he simply held the tape recorder in plain view. (22) Holding the recording device in plain view satisfies the all-party consent requirement, suggesting that knowledge, rather than consent, is all that is required, despite the language of the statute. (23)

   Seven years after the Hyde decision, Simon Glik was arrested for recording police officers that were arresting another individual. (24) Glik recorded the arrest with his cell phone because he believed the officers were using excessive force. (25) Although the recording of visual images alone does not violate the anti-wiretapping statute, audio recordings are an integral part of visual recordings, and most recording devices are equipped with both audio and visual recording capabilities. (26) Thus, Glik's recording violated the Massachusetts Anti-Wiretapping Statute because it had both a visual and audio component. (27) However, the district court dismissed the criminal charges against Glik because, unlike Hyde, Glik had been holding his cell phone in plain view. (28)

   Although not an issue in the Glik case, future cases may involve scenarios where it may not be readily discernable whether a person is making a surreptitious or a plain view recording. (29) With the rapid advancement of technology, detecting a recording may be more complicated than first thought. (30) The holding in Hyde presumes that when an individual holds a recording device in plain view the officer becomes automatically aware of the recording. (31) However, due to the rapid advancement in recording technology, the practical application of the Hyde holding may be problematic. (32) For example, a police officer may not immediately realize someone is recording him, which would force a court to decipher at what point the recording went from unlawful to lawful. (33) Additionally, the plain view doctrine provides an incentive to police officers who are engaged in unlawful police practices to deny knowledge of the recording completely and file a complaint for the illegal recording, rather than face punishment for police misconduct. (34)

   Today, secretly recording conversations is easier than ever. (35) Everyday devices such as cell phones, digital cameras, and MP3 players allow people to make recordings with the click of a button, making some plain view recordings practically impossible to detect. (36) A recent trend has emerged in which individuals record police misconduct, then post the recordings on the Internet. (37) Citizen-made Internet broadcasts of police brutality, coupled with sensationalized media coverage, give rise to serious concerns about the prevalence of police misconduct. (38) Nationally, the use of video and audio recordings has proven instrumental in both criminal and civil cases against wayward police officers. (39) Due to the rise in private citizens secretly recording police officers, police have made numerous arrests for violations of state anti-wiretapping laws in all-party consent jurisdictions. (40)

   The SJC's interpretation of the state anti-wiretapping statute raises significant First Amendment concerns. (41) According to the SJC, the plain language of the anti-wiretapping statute is unforgiving in its ban on undisclosed recordings. (42) Therefore, any party's surreptitious recording of police officers in the course of their duties would be subject to prosecution. (43) This holding may infringe upon an individual's First Amendment right to document public officials, such as police officers, in the performance of their duties. (44)

   Remarkably, the First Circuit recently held that a woman had a First Amendment right to publish a surreptitious recording of police misconduct on the grounds that the recording, though illegal under the Massachusetts Anti-Wiretapping Statute, was a matter of public concern. (45) The First Circuit allowed the broadcast of the unlawful recording on the Internet despite the illegality of the recording itself. (46) In reaching its conclusion, the First Circuit held that the publisher's First Amendment rights are far more compelling than any privacy rights of police officers in the performance of their jobs. (47) Similarly, the Glik decision noted that despite the discomfort the officers felt while being recorded, Glik's First Amendment right to gather information is fundamental and therefore the state may not infringe on it. (48)

   This Note will initially investigate the history and rationale behind federal and Massachusetts anti-wiretapping laws, including the privacy issues raised in the Hyde opinion. (49) The Note will then chronicle society's burgeoning distrust of police officers and the evolution of police practices in response to the development of recording technology. (50) This Note will also discuss the impact of recordings on civil rights litigation, police training, and police misconduct. (51) Next, the Note will introduce the First Amendment's guarantee of the public's right to gather and publish information on matters of public concern. (52) Finally, this Note will analyze the pros and cons of surreptitious recordings of police by distinguishing secret recordings from plain view recordings in consideration of advancing modern technology and conclude that society's right to monitor public officials far exceeds police officers' expectation of privacy. (53)

2. HISTORY

   1. The Constitutional Balancing Act of Law Enforcement's Need for Electronic Surveillance and Individual Privacy Rights

      The Supreme Court established the foundation of modern day electronic surveillance law in three decisions: Olmstead v. United States, (54) Katz v. United States, (55) and Berger v. New York. (56) In 1928, the Supreme Court in Olmstead refused to construe the language of the Fourth Amendment to protect private oral conversations. (57) Although the public was displeased with this holding, the Court did not revisit the issue until almost forty years later in the seminal decision of Katz v. United States. (58)

      The analysis in Katz laid the groundwork for modern electronic surveillance law and overruled Olmstead. (59) In Katz, federal law enforcement agents secretly recorded Charles Katz using a public payphone to place illegal bets. (60) The trial judge allowed the tapes of his phone conversations into evidence, and a jury convicted Katz of illegal gambling. (61) The Supreme Court reversed Katz's conviction, holding that "the Fourth Amendment protects people, not places." (62) Katz was entitled to a reasonable expectation of privacy despite the fact that his conversation...