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Police hide behind privacy statutes

The Boston Globe yesterday had an article about Boston police using a Massachusetts privacy law (Mass. Gen. Law 272 section 99) that requires both parties' consent to audio or video-recording. The statute, similar to those in eleven other states, makes it illegal to record another without their consent. This meant that when Simon Glik, a lawyer in Boston, felt that he was seeing undue police violence in an arrest and began to record it with his cell phone, the police felt justified in confronting Glik, cuffing him and seizing his cell phone. And it meant that when Jon Surmacz saw police being too rough breaking up a party and began recording it with his cell phone, the same thing happened to him, charged with illegal surveillance. The Globe article is notable as being actually the product of a student co-op project at Boston University, though it covered many column inches of the front page of the paper and inside the front section as well. It's an important topic.

Both men, with the help of the ACLU, got the charges dismissed, eventually. But the mis-use of state statutes that were passed in the wake of private detectives taping individuals who had no idea of the surveillance, in order to stifle citizen push-back against police brutality is very troubling. I am very proud that Massachusetts' Chief Justice Margaret Marshall filed a strong dissent in one of the cases that went to court on this matter. Mass. v. Hyde, 750 N.E. 2nd. 963, 977 (Mass., 2001), raising the question of possible First Amendment implications in interpreting the wiretapping statute to bar citizens from recording police misconduct.

The entire matter in Massachusetts has been closely examined in a law review article which is available at Suffolk's website: Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, a 2009 note by student Lisa Skehill at 42 Suffolk U. L. Rev. 981. This article has very helpful links to newspaper and law journal articles, but mainly focuses on Massachusetts. For a student article, it takes quite a normative stance on the matter. There is also an ALR annotation that surveys state statutes on the matter, but I cannot give a link to that, only a citation, 74 ALR2d 855, Validity, Construction and Effect of State Statutes Making Wiretapping a Criminal Offense.

The twelve states that have similar privacy laws appear to include Arizona, California, Colorado (C.R.S.A. § 18?9?303(1)(e)), Florida, Indiana (Ind. Code §§ 35-33.5-1-1 et seq.), Louisiana (LSA-R.S. 15:1307) Massachusetts, New Hampshire, New York, Pennsylvania, Texas, Washington.

The decoration is courtesy of the Police Brutality Databank, which is a pretty good link to know about in this context, http://police-brutality-dwb.net/

Full post as published by Out of the Jungle on January 13, 2010 (boomark / email).