Undermining excessive privacy for police: citizen tape recording to check police officers' power.

• Author: Mishra, Dina

In Jean v. Massachusetts State Police, police officers conducted a warrantless search of Paul Pechonis's home. (1) Unbelmownst to them, the search was audiotaped and videotaped by a "nanny-cam." Pechonis later gave the recording to Mary Jean, who posted it on her Web site with commentary criticizing the local District Attorney. The officers claimed that Jean had violated state law by willfully disclosing the contents of a recording made without their prior consent. (2) They ordered Jean to remove the recording. (3) The district court granted Jean's request for preliminary injunctive relief and the First Circuit affirmed, concluding that the First Amendment likely protected Jean's disclosure of the recording. (4) However, the First Circuit implied that Pechonis had violated the Massachusetts recording law. (5)

Massachusetts and at least twelve other states criminalize recording a communication without the knowledge or consent of all parties to the communication. (6) While some of these states' laws could be construed to exempt some recording of police, (7) others offer no textual basis for such an exemption. (8) Citizens in several states have been arrested, (9) and in some cases convicted, (10) for taping police conduct.

This Comment argues that citizen tape recording provides a necessary check against police abuses of power and furthers privacy values underlying the Constitution and other laws. But police officers' interests in privacy and safety must be balanced as well. Therefore, states should permit citizens to record police officers in the line of duty without those officers' consent, as long as their recordings are made in a physically unintrusive manner and do not capture police communications that police could reasonably expect not to be recorded.

1. THE STATUS OF STATE RECORDING LAWS

   Massachusetts and a number of other states prevent citizens from recording police officers' conversations, even within citizens' own homes. Massachusetts itself broadly prohibits the willful "secret[] record[ing]" of "any wire or oral communication" by any citizen without the consent of all parties to the communication. (11) Accordingly, Massachusetts's highest court has refused to exempt citizens who record police officers, even when the recording captures alleged police misconduct. (12)

   As the First Circuit recognized, the First Amendment protects individuals like Jean who distribute recordings of illegal police conduct. But it probably does not protect individuals like Pechonis who produce the recordings. In Bartnicki v. Vopper, the Supreme Court suggested that disclosure is protected when it constitutes "the publication of truthful information of public concern." (13) The Court explicitly declined, however, to protect "obtaining the relevant information unlawfully." (14) Furthermore, "[t]he First Amendment [does not become] a license ... to intrude by electronic means ... simply because the person subjected to the intrusion is reasonably suspected of committing a crime." (15) Thus, the Amendment does not excuse citizens from state liability for recording police, even where citizens allege police misconduct.

2. THE IMPORTANCE OF CITIZEN TAPE RECORDING OF POLICE

   1. The Need for Strong Checks Against Police Abuses

      As compared to other government officials, law enforcement officers pose the greatest risk to citizens' physical integrity and privacy because they are authorized to implement the state's most physically coercive and invasive powers. Moreover, law enforcement abuses have the potential to be much worse than the harms inflicted by private citizens. First, the government's coercive and invasive powers exceed those of private citizens. (16) Police officers are permitted to commit actions that would be illegal if committed by private citizens, (17) and some officers abuse that permission. (18) Second, police abuses are symbolically worse because they are taken on behalf of all citizens. (19)

      The Massachusetts statute facilitated the invasion of Pechonis's personal privacy in his home by overprotecting police officers' privacy while in the line of duty. This outcome is inconsistent with most sources of privacy values in our legal culture, which emphasize individual privacy, particularly in the home. (20) The Fourth Amendment focuses on "[t]he right of the people to be secure in their persons, [and] houses" from infringement by government officials. (21) Similarly, the Massachusetts recording law purports to protect the privacy of "citizens of the commonwealth," (22) rather than the privacy of police officers. Meanwhile, federal and state laws and cases demonstrate that law enforcement officers must tolerate a greater degree of intrusion than private citizens. (23)

   2. Existing Checks Are Insufficient

      Many internal checks on law enforcement officers already reduce those officers' privacy in order to prevent abuses. For example, federal and state governments monitor officers through drug testing and e-mail and phone monitoring. (24) But most forms of monitoring do not cover officers away from the police station, where many searches and arrests occur and police officers often fail to report them. (25) Police corruption can undermine internal monitoring and sanctions even where they do apply. (26)

      For these reasons, police departments should not simply require officers to videotape their own interactions with citizens. Officers can turn off their recorders (27) or record over the footage. (28) Furthermore, police departments could deny the existence of inculpatory recordings or attempt to shield them from discovery by claiming they contain confidential information. (29)

      In contrast, citizen recording provides an external check not subject to intradepartment corruption. Where citizens are permitted to surreptitiously record the police, officers have...