Hey, If You Aren't Doing Anything Wrong, Then You Have Nothing To Worry About


The Boston Globe reports that police n Massachusetts are using the state's wiretapping laws to arrest people who record cops on the job. Massachusetts is one of 12 two party consent states, which cops are interpreting to mean you can't record them without their permission.

The state's supreme court upheld such a conviction in 2001, finding that "Secret tape recording by private individuals has been unequivocally banned, and, unless and until the Legislature changes the statute, what was done here cannot be done lawfully." I'd think you could make a strong case that a public employee entrusted with the power to forcibly detain and kill falls outside the scope of a "private individual." 

According to the Globe, subsequent cases have turned on whether the recording was done secretly (in which case convictions are usually upheld), or openly (in which case the charges are usually dropped).

Boston police are claiming that recording them while on duty violates their privacy rights and may interfere with their ability to make arrests.

Reason contributor Harvey Silverglate wrote about one Massachusetts case for the Boston Phoenix in 2008. My argument for ensuring that it's always legal to record on-duty cops here.

NEXT: Ron Hart on The Crotch Bomber

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  1. Boston police are claiming that recording them while on duty violates their privacy rights and may interfere with their ability to make arrests.

    I would claim that an on duty cop doesn’t have any right to privacy. Any arrest that a recording would disable a cop from making, should not be made. Claiming that a recordings would interfere with making arrests, is a damned compelling argument for requiring cops to be recorded at all times they are on duty.

  2. Police should always be monitored by the public. It should be a severe felony for any LEO to attempt to obstruct recording of him while he is on duty (with a few exceptions, like he’s undercover or something.)

  3. “Boston police are claiming that recording them while on duty violates their privacy rights”

    Too bad the police don’t think anybody else has similar privacy rights once they step outside their homes.

    1. Too bad the police don’t think anybody else has similar privacy rights once they step outside their homes.


  4. The Boston Globe reports that police n Massachusetts are using the state’s wiretapping laws to arrest people who record cops on the job.

    The State cannot leave any witnesses.

  5. I don’t think the “private individual” section is drawing a distinction between “public” and private.

    I think it’s to leave an out for journalists.

    Of course, any statute that purports to define a difference between a “journalist” and any other citizen violates both the 1st and 14th amendments, but it’s not up to the SJC to protect our enumerated rights. They’re a state court.

    1. it violates free speech and press rights guaranteed by the STATE constitution as well.

  6. that is bullshit and unconstitutional. looks like the piglets don’t like it when they are the ones being taped. good thing many mp3s and cell phones can covertly record police encounters. I always have my mp3 player on me for the purpose of recording any and all police encounters I have so that I can prove I do not consent to searches.

    1. They are not piglets – they are tax consumers and thus thieves. And thieves that they are, they do not like to be seen (and even less, recorded) while at work.

  7. If we, the people are in fact the state, then law enforcement officers as agents of the state must then either directly or indirectly answer to the people. That said, anything which allows the people more disclosure and transparency by any of our agents cannot possibly hinder that agent’s job or performance.

    If it does hinder them, then it’s perhaps time to find a new career…

    1. The State, that is the coldest of all cold monsters. Coldly, also, it lies, and the lie that creeps from its mouth is this: “I, the State, am the People.”

      – Friedrich Nietzsche

  8. Arrests are matters of public record.

    Also, I always wear my “any interaction with me constitutes consent to be recorded” t-shirt.

    1. After a while, doesn’t it get…you know…a little gamey?

      1. That goes to limiting the number of interactions I have to endure.

  9. I always suspected these developments were in the pipeline. The fact video doesn’t lie is inconvenient as much as convenient for law enforcement and the political establishment that controls it. I always thought a great business would to offer a service where you’d install a bunch of cameras on your car. It would be handy for things like traffic stops and insurance claims. I always wondered what would happen after inevitably a few cops got caught lying after pulling shenanigans while unawares they were being recorded. I always figured some ordinance or what-not from a City Council would be the first shot there. But a State Supreme Court? Pulling out all the stops early. Reflects some anxiety there I think by the powers-that-be to quash this notion of “right to bear cameras” before it gets out of hand.

    From a legal perspective, I’m surprised it took as long as it did for the Establishment to begin institutionalizing the double-standard.

    Guns and cameras are analogs in a way. They both are important tools for the elite to control and influence the mob, but have a (for them) debilitating effect of equalizing them with the mob, should the mob come to possess or use them. Hence, the mob can’t have or use either…for anything but the most innocuous uses at best.

  10. Nothin’ goin’ on over here.

    *Thump thump*

    Keep moving, don’t film us!

    *thump thump*

    I’ll teach you to film me!!

    *thump thump bang*

    Silly citizen bring a camera to a gun fight.

  11. There’s always Qik

    1. I put the URL in the website box. Hopefully it won’t be cut.

  12. Radley, could you please list the two-party consent states?

    1. From Wikipedia:

      Twelve states currently require that BOTH or ALL parties to be notified of the recording. These states are:

      New Hampshire

      1. Sort of insult to injury how many of those states are also big red-light and speed camera states.

        1. Florida is a big red light camera state. Aside from the hypocrisy (I certainly didn’t consent to having my video taken in an intersection), the truth is that Floridians believe that cops should be able to injure, kill or maim citizens without much explanation. If an innocent person is involved in a scrape with the cops, the local civic groups, newspapers and blogs presume that the person is guilty. And people in Florida are really, really, really stupid. On red light cameras they say “if you don’t run the red light, you have nothing to worry about”. To which I respond “actually, I worry that some redneck trying to avoid the red light camera will smack into my lawfully stopped car”. The response is always “you just want to run red lights”. I know I can be a bit of a bore, but these people are completely retarded.

        2. Could we maybe get a class-action lawsuit against the state and the manufacturers (cameras *designed* to break the law)?

          That could be extremely entertaining.

  13. TLTG, Tonio?

    1. Apparently so. Duh.

      1. But are you Too Lazy To Bing?

  14. Battered Jackboot Syndrome
    By William Grigg January 12, 2010

    It isn’t common for a man who suffers a minor physical indignity at the hands of a smaller woman to press criminal charges against her. This is especially true of incidents in which the man retaliates by throwing the woman to the ground and then compounds that assault by restraining her by force.

    But Orlando resident Andrew Brennan isn’t an ordinary male. He’s one of the sanctified personages set apart by state-issued costumes and clothed in the presumed authority to push others around and kill them when they resist.

    So when 24-year-old Alexandra Espinosa-Amaya laid an unhallowed hand on Officer Brennan’s person ? specifically, by pushing him in the face and knocking his eyeglasses to the ground ? this wasn’t the trivial and bearable affront it would have been had Brennan been a member of the productive class. Instead it was “battery on a law-enforcement officer,” and originally classified as a felony.

    As a result, Amanda was sentenced to two years’ probation, 50 hours of “community service,” and a course in state-licensed psychological programming (also known as “anger management class”). She also had to write the poor, traumatized “victim” a letter of apology.

    But all of this was insufficient to assuage the hurt feelings of the brutalized Hero in Blue, who doubtless suffered a species of post-traumatic stress disorder as a result of the incident. At Officer Brennan’s suggestion, Miss Espinosa-Amaya was required to stand outside the Orlando Police Department headquarters holding a hand-lettered sign reading: “I battered a police officer. I was wrong. I apologize.”

    “The officer that was battered asked for this disposition because he wanted to bring awareness to the fact that officers from this agency and others are battered on a regular basis, often causing severe injury and/or medical retirements,” insisted OPD spokeswoman Sgt. Barbara Jones. “He hopes the disposition in this case will bring public awareness to the issue.”

    If Andrew Brennan were any part of a man, he wouldn’t have made an issue out of being pushed by a woman. If the soprano-singing pseudo-male had any gift for irony, or even a small measure of self-awareness, he would at least have dealt with the issue in a way that didn’t advertise his overdeveloped sense of entitlement and vast capacity for self-pity.

    Alexandra and her sister Natalia were evicted from an Orlando nightspot in November 2008. The two “combative” females were ushered out of the premises by a bouncer, who was exercising a prerogative associated with property rights.

    Brennan, a government employee, carried out the predictable function of making matters worse by butting in. This led to the felonious “pushing” by Alexandra. Brennan reacted by throwing the woman to the ground and handcuffing her. Natalia, most likely seeking to defend her sister, kicked Brennan, a supposed offense for which she was sentenced to a year of probation, 50 hours of community service, and a stint of “anger-management” class.

    Brennan preserved the “evidence” of the “assault” by photographing his glasses, which were stained by the unholy fingerprints of a Mundane. Alexandra, on the other hand, was severely bruised and otherwise injured by Brennan’s unwarranted assault.

    Interestingly, although Alexandra’s punishment makes it appear as if she had taken a club to pathetic little Officer Castratto ? er, Brennan, she was actually convicted of battery and “resisting an officer without violence”; this underscores the fact that merely touching a member of the state’s punitive priesthood can be construed as a felony.


    Another reason they would most likely not want to be video recorded – it could be bad for their manhood.

    1. Cops rarely win when they are recorded.

  15. BPD isn’t even as bad as the Masshole State Police. They are the ultimate in arrogance as they have statewide jurisdiction including Boston. For instance, the NYPD pretty much tells the NYSP to fuck off within Greater NYC, but the MSP have nice big offices all over Boston including right next to the Science Museum.

    1. Boston being the state capital has everything to do with that.

      1. Can’t we just make NYC the state capitol of NY already?

        Fuck Albany. (did i get the right even? i didn’t bother checking)

    2. Plus they wear quasi-Gestapo uniforms.

  16. Why can’t we use this line more AGAINST the authorities?

    What do you mean you’re against civilian review boards Chief of Police, if your officers have nothing to hide there’s nothing to worry about.

    Shouldn’t you be for more expansive discovery mr District Attorney, after all if your case is so strong what is there to hide?


    1. Re: MNG,

      Why can’t we use this line more AGAINST the authorities?

      Remember that the thieving tax consumers do not think the rules apply to them.

  17. The key part of the statute reads as follows:

    The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication;

    If I’m standing in the street holding my cellphone in front of my face so that I can tape or photograph something, how is that “secret”, exactly?

    1. By the statute, it’s actually just the audio that is at issue. You can record video and audio publicly, or just video privately, but you cannot record audio privately (or secretly).

      You are correct that standing on the street making the recording is not private, and courts toss the charges when the act of recording is public.

      But the purpose of the charge in the first place isn’t conviction, just harassment. It’s essentially another path to “contempt of cop”.

  18. Good lawyer could make hay out of the part “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device .

    Video is neither over a wire or “oral” (snickers all around). Maybe silent video without the audio, but the video part would be admissible. At least until the first court case, cause then they “fix” the language as an amendment in the next farm bill or whatever ASAP.

    1. The definition of “wire” is pretty broad i imagine. Like, if your recording could EVER be transmitted, then suddenly there’s “a wire” involved.

      Hell, i bet there’s actually a few real wires in modern camcorders still. So those count.

      1. “Wire” I think means conversation over a wire, i.e. telephone. These laws were written way back in the day, and a lot of them were contrived to deal with things like the mob (Federal Wire Wager Act).

  19. Wow, I never even thought of this angle. If I ever move out of my current State, I’ll have to make a big spreadsheet of what freedoms I would have in each State, and compare them all. At least this “two party consent” thing isn’t too popular yet.

  20. Clearly what we need is little tiny cameras that they can’t even see.

    1. Soon as cellphones evolve into Synthetic Telepathy. Hang in there.

  21. The supreme court found illegal secret tape recording BY private individuals, not secret tape recording OF private individuals, so your statement that cops are not private individuals misses the point.

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