CONSTITUTIONAL LAW - CONCEALING IDENTITY TO RECORD IS NOT AN INTERCEPTION UNDER MASSACHUSETTS WIRETAP STATUTE - CURTATONE V. BARSTOOL SPORTS, INC., 169 N.E.3D 480 (MASS. 2021).

• Author: Cardon, Catherine

The principles of the Fourth Amendment, along with the Massachusetts Wiretap Statute ("Wiretap Statute"), provide a right to privacy, free from willful interception of oral and wire communications. (1) The focal point of the Wiretap Statute is to prohibit "the secret use of such devices" by individuals to intercept communications that would violate privacy interests. (2) In Curtatone v. Barstool Sports, Inc., (3) the Massachusetts Supreme Judicial Court ("SJC") examined whether a recording of a telephone communication procured through the use of a false identity constituted an "interception" under the Wiretap Statute. (4) The SJC ultimately held that the recording was not an interception because the recording was not made in "secret." (5)

In May 2019, a Boston Herald reporter authored an article and published a statement on Twitter criticizing the Boston Bruins for partnering with the defendant, Barstool Sports, Inc. ("Barstool Sports"), in distributing promotional Barstool Sports towels to fans at a Stanley Cup game. (6) Two days after the reporter's article was published, the plaintiff, Joseph A. Curtatone ("Curtatone"), then mayor of Somerville, Massachusetts, posted a statement on Twitter discouraging the Boston Bruins hockey team and the National Hockey League from further associating with Barstool Sports due to their "crass" reputation. (7) In response to Curtatone's statement, Barstool Sports' president, David Portnoy, used both his personal social media accounts and Barstool Sports' social media accounts to make accusatory statements towards Curtatone, resulting in a public dispute. (8) In light of this public dispute, Kirk Minihane ("Minihane"), an employee of Barstool Sports, requested an interview with Curtatone. (9) Minihane disclosed his true identity and affiliation to Barstool Sports, and Curtatone denied his request to interview; however, Minihane made a second attempt, but this time referred to himself as Kevin Cullen, a reporter for the Boston Globe. (10) Under the impression that he would be interviewed by a Boston Globe reporter, Curtatone agreed to the interview. (11)

On June 6, 2019, Minihane interviewed Curtatone by telephone and, at its outset, Minihane requested for consent to record the interview, to which Curtatone assented. (12) Minihane then altered his normal speaking method to sound like Kevin Cullen and told Curtatone that the interview was being conducted for a piece to appear in the Boston Globe. (13) The recording of the interview was subsequently published on Barstool Sports' blog where Minihane bragged about concealing his identity. (14) Upon publication of the recording, Curtatone discovered that his interview was not conducted by a Boston Globe reporter, but rather by Minihane. (15) On June 17, 2019, Curtatone filed a complaint against Minihane and Barstool Sports asserting a violation of the Wiretap Statute. (16) Minihane and Barstool Sports filed a motion to dismiss which was subsequently granted by the Massachusetts Superior Court and, on appeal, transferred to the SJC for de novo review. (17)

The Massachusetts legislature initially created the Wiretap Statute as a one-party consent statute, aimed at preventing the interception of oral or wire communications to protect an individual's right to privacy under the Fourth Amendment. (18) However, a substantial amendment in 1968 changed the operative standard to two-party consent, creating a wiretapping statute that was stricter than those of other states. (19) There are two main rationales justifying two-party consent: first, an individual has the liberty to consent, and second, an individual has the right to preserve the distribution of their own speech. (20) Some two-party consent statutes focus on the nature of the conversation as an individual's "proxy for privacy," and such statutes provide broad protection to many types of conversations. (21) Other two-party consent states, such as Massachusetts, expressly authorize a conversation to be recorded without expressed consent if the individual who is being recorded has actual knowledge of the recording but continues to "speak in apparent indifference to the consequences." (22) Therefore, under the Massachusetts Wiretap Statute, expressed consent is not required if an individual is considered to have implicitly consented, which occurs when the individual is aware of the recording and chooses to proceed with the conversation. (23)

The Wiretap Statute's preamble frames the underlying intent of the legislature to protect citizens from "grave dangers to ... privacy" implicated by "unrestricted use of modern surveillance technology," reasoning that secret use of such devices must therefore be prohibited. (24) To assert the statute's protection, an individual must be subject to an interception, which is expressly defined by the statute as "to secretly hear, secretly record ... the contents of any wire or oral communication[,]" by any person who has not received "prior authority by all parties to such communication[,]" (25) However, in the context of "interception" under the Massachusetts Statute, the term "secret" is not statutorily defined. (26) When a statute does not expressly define its own words, courts will usually construe a term "in accord with its ordinary meaning" and ensure that the ordinary meaning is consistent with the intent of the statute's enactors, other legal contexts, and dictionary definitions. (27) The SJC follows this procedure, and upholds the ideology that the meaning must embody the "intent of a statute from all its parts and from the subject matter to which it relates, and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense." (28) Therefore, in a practical sense, the ordinary meaning of the statutory language must both honor the underlying intent of the statute and provide a workable application of the statute. (29)

The SJC has previously applied this statutory interpretation framework to the Wiretap Statute. (30) Most notably, in 1976, the SJC in Commonwealth v. Jackson was tasked with interpreting the statutory language of the Wiretap Statute to determine whether a secret recording constituted an actionable interception. (31) The SJC focused on the plain language used to define interception in the statute, and reasoned that if the telephone recording was not made secretly, then the interception was lawful under the Wiretap Statute. (32) As a result, the SJC held that the defendant's actual knowledge of the telephone recording removed the action outside of the scope of the statute, and that "consent could be implied by clear and unequivocal objective manifestations of knowledge" because it is "sufficiently probative of a person's state of mind as to allow an inference of knowledge." (33) The SJC's reliance on the consenting individual's state of mind, rather than the circumstances surrounding the recording, is consistent with the legislative intent derived from the original construction of the Wiretap Statute as a one-party consent statute. (34) In effect, the decision in Jackson expanded the scope of the statute concerning consent by looking at the plain language and the underlying legislative intent. (35)

In Curtatone v. Barstool Sports Inc., the SJC addressed whether a recording obtained through the use of a false identity constituted a "secret" recording and thereby an actionable interception within the meaning of the Wiretap Statute. (36) The SJC first reviewed the statutory definition of "interception" and the scope of its meaning, and then proceeded to determine what it means for a recording to be "secretly made" through a textual analysis of the Wiretap Statute. (37) To establish what constituted a "secret" recording, the court relied on the expressly defined term "interception[,]" which provides two independent requirements for an act to be prohibited. (38) The prohibited action must first be "secretly made" and second, the recording must be made "without prior authority by all parties." (39) The court concluded that if a recording is not made "secretly," there is no need to continue and determine the subsequent consent requirement. (40) The court reasoned that because "the act does not define the term 'secretly,' '[the court will] give the term its "usual and accepted meaning,"' subject to its application being consistent with the statutory purpose of the Wiretap Statute. (41) The court then looked to the statutory enactor's ordinary meaning of "secretly," and their use of the word "in other legal contexts and dictionary definitions." (42)

Next, the SJC turned to the construction of the statute and explained that "secretly" modifies the act of hearing or recording, and therefore, the act of the recording is what must be done secretly for an interception to be prohibited. (43) Accordingly, the court then determined that a recording obtained by using a fraudulent identity was outside the scope of the Wiretap Statute because the defendant had actual knowledge the conversation was being recorded. (44) The court reasoned that the "identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant" because it is the act of recording that must be "secret" to constitute a prohibited interception, and if there is knowledge of the recording, consent need not be examined. (45) The court then examined the history behind the Wiretap Statute to compare legislative intent to its plain meaning analysis of the term "secret." (46) The court concluded that the legislators intended to confine the scope of the Wiretap Statute to the use of electronic devices to secretly eavesdrop or record, and therefore, issues akin to the instant matter fall outside the statute's scope because...