Leonardo Angiulo: Why You Should Think Twice Before Secretly Recording With Your Cellphone

Monday, March 25, 2013

Leonardo Angiulo, GoLocalWorcester Legal Expert

Leonardo Angiulo, GoLocalWorcester Legal Expert

Almost every person on the street has a phone in their pocket that can make audio or video recordings and then instantly send them to the internet. The problem is, some of what people are recording may be criminal. The language of Massachusetts General Laws chapter 272 section 99 specifically prohibits the interception of wire or oral communications without a warrant. To take this out of legal terms, it roughly translates into the following: you're not allowed to secretly record people without a court order.

The statutory requirements are broken into distinct terms. Some of the important ones include the recording being done in a secret way and the communication being speech not transmitted over public airwaves such as radio. The original version of MGL c. 272 sec. 99 is from 1920, but the principle that private conversations should be protected remains the same. The preamble to the statute includes the specific legislative intent of protecting citizens from the unrestricted use of modern surveillance devices. The law goes on to state specifically that private citizens must be prohibited from secretly using such devices.

In Massachusetts, if you violate this statute you can be charged with a felony and face fines and jail time. The good news is that the rules apply to both law enforcement and regular folk. It's illegal for you to surreptitiously record who comes in and out of my hypothetical apartment because it's an invasion of my privacy. In the same way, it's illegal for police to do the same thing without a warrant, even if they think I am selling drugs.

Imagine, for just a moment, if it were legal for major corporations to install microphones in your kitchen so they can build refrigerators that people like better. Offensive, right? How about a more practical example: What if police could tap your phone if they suspected you of drug dealing? Not to make you more paranoid, but this can in fact happen with a warrant. Not only that, but they can install video cameras in hallways of apartment buildings and use thermal imaging devices on your house to look for grow lights.

Now, we have this image of investigators sitting in unmarked vans smoking cigarettes and pressing headphones to their ears from the movies. In Massachusetts, this may happen, but it's not supposed to without a judge signing off on it. A warrant is a court order applied for by police that explains what they want to do and why. The judge's job is to review the requirements of the law, the contents of the application and make a decision as to whether the case justifies the level of intrusion occasioned by surveillance.

Sure, there are lots of reasons why a private person would also want to make an audio or video recording of a conversation. It may be that you are meeting with a contractor and you want to make a record of what they are promising to do and when. The problem comes when you keep that cell phone in your pocket instead of putting it on the table and some evidence indicates that the contractor was aware of its existence and its purpose. Compounding this problem is the fact that making a recording is easier than ever with apps that make voice memos, video cameras that fit in your palm instead of on your shoulder, and the reality that no one goes anywhere without their phone. But the old rule that “just because you can doesn't mean you should” applies here.

What if, you may be asking, I see something happening that I think is wrong and I want to document it? You could be at a party, or you could be on the street when this happens. This is neither the time or place for an essay on civil disobedience. I would, however, offer an example from 2007 when a lawyer took out his cell phone to record police officers' he felt were using excessive force during an arrest. After facing prosecution under this statute, having those charges dropped, and filing charges of his own against the police, Mr. Simon Glik won a hard fought victory in the Federal Appeals Court.

At the center of the court’s ruling lies the principle that the First Amendment's freedom of the press is broad. Broad enough to protect individual people who are gathering information that is of public interest. The actions of government officials, in public spaces, in furtherance of their public positions is that kind of behavior that can be recorded in order to further discussions by the public about government affairs. In addition, the specific facts of Mr. Glik's case show that he openly used his cell phone to record the actions of the police. The court went on to opine that the wiretap statute could not have been violated because there was nothing secret about the recording.

Technology has a remarkable ability to help us document the world around us. It is also true, however, that our culture has struggled and continues to struggle with the balance between that ability and privacy interests for a long time now.