. Re Boston police fight cellphone recordings

[Dave Farber <dave () farber net>]

Begin forwarded message:

> From: Sarah Wunsch <swunsch () aclum org>
> Date: January 14, 2010 1:00:22 PM EST
> To: dave () farber net
> Subject: [IP] Boston police fight cellphone recordings

> Dave, two points:  First, the phrase “two party consent” in  
> relation to the Massachusetts wiretap statute is misleading.  The st 
> atute prohibits “secret” interceptions of audio or wire  
> communications.  Thus, if a person is openly recording the police in 
>  public, that is not secret recording in violation of the statute.   
> The police have persisted in arresting people for that, despite cour 
> t decisions rejecting these arrests.  The police tell the person, I  
> didn’t consent, and think that gives them the right to arrest.  They 
> ’re wrong.
>
> Second, Harvey Silverglate mentions legislative fixes.  The existing  
> statute does not need to be fixed to deal with the problem of  
> arrests of people who are openly in public recording audio. The law  
> plainly bans only secret recording and the courts have agreed with  
> that and have thrown out charges against people who openly recorded.  
> The case he refers to, Commonwealth v. Hyde, upheld the conviction  
> under the wiretap law of a man who secretly voice recorded the  
> police after they stopped his car.  Although the ACLU of  
> Massachusetts filed an amicus brief in support of the man on the  
> appeal, the highest court of our state held that the statute  
> prohibiting secret audio recording did extend to protecting the  
> police even when they are carrying out their duties in public.  Two  
> justices joined in a very vigorous dissent, saying that the statute  
> plainly was intended to protect the privacy interests of our  
> residents, not the police carrying out their duties in public.  Our  
> statute does not, however, expressly use the language that many  
> state wiretapping statutes contain, about protecting conversations  
> that take place in a context where the people have an expectation of  
> privacy.  We are discussing ways to fix that legislatively; it isn’t 
>  actually simple.   Thanks for the discussion.
>
> Sarah Wunsch, Staff Attorney
> ACLU Foundation of Massachusetts
> 211 Congress Street, Third Floor
> Boston, MA 02110
> 617-482-3170, ext. 323
> (fax) 617-451-0009
> swunsch () aclum org



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