Activists, ACLU Push for the Right to Secretly Record Police in Massachusetts

On July 19, 2018, a federal judge in Boston heard oral arguments in an important lawsuit brought by the ACLU of Massachusetts seeking to establish that the First Amendment protects the right to secretly record police officers. The lawsuit, Martin v. Evans, challenges the constitutionality of Massachusetts’ wiretap statute, Massachusetts General Laws Chapter 272, Section 99, with respect to secret recordings of police officers. Section 99 makes it a felony to secretly record oral communications. Two Massachusetts civil rights activists, Eric Martin and Renee Perez, want to be able to record police secretly without the threat of prosecution.

The Boston Police Department trains its officers that they have a right to arrest civilians for secretly recording them, even though Glik v. Cunniffe—our firm’s landmark 2011 case in the First Circuit, which confirmed the constitutional right to record police—makes no distinction between open and secret recording. Since 2011, the Boston Police Department has brought nine criminal complaints under Section 99 for the secret recording of its police officers. The ACLU’s suit asks the court to rule that it is unconstitutional to arrest people under the wiretap law for exercising their First Amendment right to secretly record police in the public performance of their duties.

Defendants, Boston Police Commissioner William Evans and Suffolk County District Attorney Daniel Conley, argue that the privacy rights afforded under the wiretap law should apply equally to police officers. United States District Judge Patti Saris said that she could not think of a single reason to support the notion that a police officer involved in a public arrest should retain any expectation of privacy. Defendants further claimed that civilians’ right to openly record police is, alone, an effective measure in ensuring that police officers conform to laws. The ACLU argues that secretly recording the police would yield an added layer of transparency that is otherwise lost when officers refrain from misconduct because they know they are being recorded.

Arguing alongside the ACLU in a separate but related suit were attorneys representing Project Veritas. Project Veritas also seeks an injunction against the enforcement of Section 99. Seeking a considerably wider ruling than the ACLU, Project Veritas wants to be allowed to secretly record all individuals in all spaces generally accessible to the public.

Judge Saris said that she was contemplating three forms of potential relief: the narrowest form would protect the secret recording of police officers in public settings (motor vehicle stops, sidewalks, parks); the middle form of relief adds to this the right to secretly record all public officials in all public forums; the broadest form of relief would protect the right to secretly record all individuals in all spaces that are generally accessible to the public. Our firm welcomes any outcome that ends enforcement of Section 99 against those secretly recording the police. Affirming that the First Amendment protects secret recording will result in greater police transparency and accountability, and less police harassment and retaliation against civilians exercising a vital constitutional liberty.

By Alec Larson, Legal Intern