Massachusetts law enforcement officials are shy creatures; they deeply resent being recorded, even when going about taxpayers' business in public places. The latest person to feel their wrath is Karen Dziewit, of Chicopee, Massachusetts. She faces wiretapping charges for using her smartphone to record police officer who were busting her for disorderly conduct and possessing an open container of alcohol. That's a popular application of the law in the state by cops who like operating unmonitored, but a recent federal appeals court decision suggests that she was well within her rights.
According to MassLive:
According to city police, Dziewit was arrested while drinking on Chestnut Street early Sunday morning. Prior to being taken into custody, police said, she activated an audio recording app on her smartphone. Police discovered the phone, with the recording feature still engaged, during the booking process, which triggered the unlawful wiretap charge.
Massachusetts law prohibits the recording of audio without the consent of the person being recorded.
Massachusetts is a "two party consent" state both regarding electronic communications and in-person conversations. The statute criminalizes anybody who "willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication."
Cops in the state have been enthusiastic about using the law to record their activites without their say-so. Needless to say, if you ask for permission, the likely answer is "no."
Activist Peter Lowney was convicted in 2007 of "wiretapping" a Boston University police sergeant with a hidden video camera during a political protest. And libertarian police accountability activists Adam Mueller and Pete Eyre were similarly charged for recording at a Franklin County jail, though a jury later acquitted them of all charges.
A jury may not be the only hope for Dziewit. In 2011, the federal First Circuit Court of Appeals ruled in favor of activist Simon Glik, who recorded an arrest on Boston Common.
[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with caselaw from this and other circuits, answer that question unambiguously in the affirmative.
Jeffe Hermes of the Digital Media Law Project understandably proclaimed that decision "a victory for recording in public."
The court language seems unambiguous, but Glik was openly recording; Dziewit didn't announce her intentions or brandish the phone (which would not have been a recommended move, anyway). That may be just enough of a difference for the Hampden County District Attorney to hang his transparency-hating hat on.
But that federal appeals court decision really seems to suggest that recording the cops in public is a right, and the wiretapping law doesn't shield them from scrutiny when they're going about their duties.