Privacy Rights: Who can Tape You in Massachusetts?
Monday, May 05, 2014
California is a “two-party” consent state, requiring consent from all parties in a conversation if it’s being recorded. Massachusetts became a two-party consent state in 1968. All parties to a conversation must agree to be recorded. If not, the recording is illegal. Also referred to as the “wiretapping law,” two-party consent makes it a crime to secretly record an in-person or telephone conversation without the consent of all parties.
There have been high-profile cases that have challenged the law, such as the Simon Glik case. Glik was arrested for violating the wiretapping law by recording a police officer in public without the cop’s permission. In 2007, Glik observed policemen using what he perceived to be excessive force while arresting people on the Boston Common. He proceeded to record the incident on his cell phone before he was arrested.
The charges were eventually dropped, but Glik – an attorney – didn’t drop it. Glik filed a civil rights suit against the city and the arresting officers in federal court in Boston, aided by the American Civil Liberties Union of Massachusetts and Boston attorneys Howard Friedman and David Milton. The arrest was found to be in violation of the First and Fourth Amendment, and the City of Boston was ordered to pay Glik $170,000 for his damages and legal fees.
According to the ACLU, the settlement followed a landmark ruling from the previous year by the U.S. Court of Appeals for the First Circuit, declaring that the First Amendment protects the right to record police carrying out their duties in a public place, Glik v. Cunniffe 655 F.3d 78 (2011). The Massachusetts wiretap statute prohibits only secret recording of audio. The ACLU said the First Circuit in Glik's case affirmed that an arrest under the statute for openly recording the police would violate not only the First Amendment right to gather information but also the Fourth Amendment's guarantee against false arrests.
“The law had been clear for years that openly recording a video is not a crime. It's sad that it takes so much for police to learn the laws they were supposed to know in the first place. I hope Boston police officers will never again arrest someone for openly recording their public actions,” Glik said at the time.
“The court's opinion made clear that people cannot be arrested simply for documenting the actions of police officers in public. With this issue squarely resolved against it, it made sense for the City to settle the case rather than continuing to waste taxpayer money defending it,” said Milton, one of the attorneys for Glik.
The ACLU said the Glik suit led the City of Boston to change its policy of letting police officers arrest and charge people with illegal wiretapping for recording them with cameras or cellphones in plain sight. The City developed a training video based on facts similar to the Glik case, instructing police officers not to arrest people who openly record what they are doing in public.
Most states, including Rhode Island, are one-party consent states. State law expressly allows the recording and disclosure of the contents of any wire, oral or electronic communication by a party to the communication or with the prior consent of one of the parties, so long as no criminal or tortious purpose exists. Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy.
"RI’s one-party law is like the majority of states. It is also federal law, governing interstate calls. The philosophy behind these laws is that we all take the risk that anyone with whom we have a private conversation will remember the conversation or take notes and blab about it. If a person with whom we have a conversation records it, at least it will be an accurate rendition," said Robert Ellis Smith, Publisher of The Privacy Journal.
"Generally in these one- and two-party states, businesses may record business-related calls without consent, but not the part of a conversation that is clearly personal. The Sterling case should also remind us that these laws apply to in-person tape-recording as well as interception or recording of a telephone call."
It is almost always illegal to record a phone call or conversation to which you are not a party. Vermont is the only state with no criminal penalties for unlawful recording.
“Folks should realize that anyone can tape you, (in Rhode Island),” said former RI Attorney General Arlene Violet.
“Lots of recorded conversations are done for purposes of divorce. Folks need to be reminded that anything they say over a phone can be used against them so they need to be mindful that they could be recorded.”
In Rhode Island, illegal recording – or disclosing with reason to know of the illegal recording – carries a criminal penalty of not more than five years in prison, but no penalty can be imposed if the contents of the intercepted communication have become “common knowledge or public information.” Civil liability is authorized for actual damages, $100 for each day of violation or $1,000 — whichever is greater. Punitive damages, attorney fees and litigation costs also are authorized. (R.I. Gen. Laws § 12-5.1-13.)
Vegress, a data engineering firm, offers a map of which states have which rules, as well as some case law from around the country. According to Vegress, the State Supreme Court has stated that Rhode Island’s wiretapping laws should be interpreted more strictly than the federal wiretapping statute "in the interest of giving the full measure of protection to an individual’s privacy."
“There are numerous criminal cases of taping conversations,” Violet said.
“He was convicted of stealing a camper and selling stolen autos. Initially, he arranged for an associate to steal a camper to take him and his girlfriend, Vivian, to Florida to catch some rays,” Violet said.
“He then broke up with her. She went to the police to inform on his obtaining stolen property. The police approached another wise guy and he engaged Bobo in conversation over a phone on which the state police had placed a listening device. The conversation was recorded and Bobo talked about stealing cars and reselling them out of state. Along with the seizure of the purloined autos that matched the description of ‘available’ cars Bobo recited, his taped conversation was introduced to nail Bobo, who was convicted. It is pretty standard to tape these conversations at the direction of law enforcement for criminal prosecution,” Violet said.
More states are starting to move towards laws similar to those here in Rhode Island. Like California, Illinois was one of the few states to require the consent of all parties in a recorded conversation. The Illinois State Supreme Court recently declared Illinois’ “eavesdropping” statute to be unconstitutional. Chief Justice Rita Garman wrote this for the court:
“Audio and audiovisual recordings are medias of expression commonly used for the preservation and dissemination of information and ideas, and thus are included within the free speech and free press guarantees of the first and fourteenth amendments. The act of making such a recording is necessarily included in the first amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”
Related Slideshow: New England’s Strangest Laws
Illegal to test drive a horse on the highway
11-22-11 Testing speed of horse. Every person who shall drive any horse over any of the public highways, for the purpose of racing or trying the speed of the horse, shall be fined not more than twenty dollars ($20.00) or imprisoned not exceeding ten (10) days.
Illegal to provide alcohol or narcotics to a hospital patient
Chapter 270: Section 5. Giving, selling or delivering alcoholic beverages or drugs to hospital patients; possession.
Section 5. Whoever, except under the direction of a physician, gives, sells or delivers alcoholic beverages, as defined in section one of chapter one hundred and thirty-eight, or a narcotic drug to a patient in any hospital who is suffering from inebriety or from the effect of inebriety, or from excessive use of narcotic drugs or from the effect of such use, and whoever has in his possession within the precincts of any hospital any such beverage or drug with intent to convey or deliver it to any such patient, except under direction as aforesaid, shall be punished by a fine of not more than fifty dollars or by imprisonment for not more than two months.
Illegal to collect seaweed from the beach
FISH AND GAME
GENERAL PROVISIONS AS TO FISH AND GAME
In Night. If any person shall carry away or collect for the purpose of carrying away any seaweed or rockweed from the seashore below high-water mark, between daylight in the evening and daylight in the morning, he shall be guilty of a violation.
Source. 1973, 532:10, eff. Nov. 1, 1973.
Illegal to pass on left without making a loud noise
31-15-4 Overtaking on left.
The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules stated in this section:
(1) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall give a timely, audible signal and shall pass to the left at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.
(2) Except when overtaking and passing on the right is permitted, the driver of the front vehicle on the audible signal of the overtaking vehicle shall give way to the right, and shall not increase speed until completely passed by the overtaking vehicle.
Waterboro Town Ordinance
Illegal for dog leashes to exceed 8 feet in length
Section 3: Control
It shall be unlawful for any dog, licensed or unlicensed, to run at large, except when used for lawful hunting purposes.
At large means off the premises of the owner or keeper and not under the control of any person by means of personal presence and attention as will reasonably control the conduct of such dog.
Reasonable control, for the purposes of this Ordinance shall mean the use of a leash, cord, chain or otherwise, of not more than 8 feet in length, or unless confined within a vehicle, under restraint in an open vehicle being either driven or parked, or under voice control or command in the case of a trained dog providing that such control is strictly maintained.
(Adopted Annual Town Meeting June 8, 1991. Amended Special Town Meeting June 23, 2001)
Dead Animals Have No Monetary Value
Value of diseased animal
Rocky Hill Town Ordinance
Illegal for an arcade to have more than 4 amusement devices
As used in this chapter, the following terms shall have the meanings indicated:
MECHANICAL AMUSEMENT DEVICE
A. Any mechanical pinball amusement device which is so constructed that the result of its operation depends upon chance, or upon the skill of the operator, or upon both;
B. Any mechanical device which in its operation shoots or propels an electric light, ray or impulse to a target;
C. Any table bowling, shuffleboard or other mechanical table game or amusement device involving the propulsion of spheres or other projectiles, mechanically or by hand; or
D. Any coin-operated or coin-in-the-slot table amusement device or game.
PERSON -- An individual, partnership, corporation, club or association.
81-3. License required; number restricted.
A. No person shall have in any place within a permanent structure open to the general public or occupied by any club or association any mechanical amusement device without first having obtained a license therefor.
B. Notwithstanding the provisions of Subsection A, no person shall have in any place within a permanent structure open to the general public more than four mechanical amusement devices.
Biddeford Town Ordinance
Illegal to roller skate on the sidewalk
Sec. 62-58. Riding bicycles, skating on sidewalks prohibited; penalty.
(a) No person shall ride a bicycle upon any public sidewalk in the city. No person shall skate on any sidewalk in the city.
(b) Whoever violates or fails to comply with any of the provisions of this section may be punished by a fine of not more than $10.00.
(Code 1975, 6-1, 6-14, 15-12)
Claremont Town Ordinance
Illegal to drink or picnic in a cemetery
No person shall:
(4) Use the cemeteries as picnic grounds, or consume alcoholic beverages in a cemetery, or bring the same upon the premises.
(9) No child under the age of ten (10) years shall be allowed in any cemetery unless accompanied by an adult.
(11) Be within the cemetery at any time other than daylight hours except cemetery employees, police officers, or by authorization of the superintendent.
(Ord. No. 182, 3, 5-10-78)
Illegal to fire gun from public highways (fine: up to $100)
General Statutes of Connecticut, Revised to 1997
Title-53 - Crimes
Sec. 53-204. Hunting or discharging firearm from public highway.
Any person who hunts or discharges any firearm from any public highway shall be fined not more than one hundred dollars. This section shall not apply to any law or conservation enforcement officer in the performance of his duty. Enforcement officers of the Department of Environmental Protection are empowered to arrest for the violation of the provisions of this section.
(1955, S. 3290d; 1957, P.A. 344.)
Biddeford Town Ordinance
Illegal to gamble at the airport
Illegal to check into a hotel under an assumed name
TRADE AND COMMERCE
HOTELS, TOURIST CABINS, ETC.
Defrauding an Innkeeper
Evidence. In prosecutions brought under this subdivision, it shall be prima facie evidence of intent to defraud or of intent to avoid paying an owner of an inn or hotel if service was obtained from, in, or through an inn or hotel, by:
I. A false of fictitious show or pretense of any baggage or other property; or
II. The use of a false or fictitious name; or
III. The use of any credit card, the privilege to use which has been revoked, canceled, unauthorized, or in any way invalidated by the issue thereof; or
IV. Absconding without paying or offering to pay for the service prior to leaving such establishment unless a written agreement for credit has been executed; or
V. Surreptitiously removing or attempting to remove baggage or other property without having made payment; or
VI. Failing to make payment for any service after the owner, upon probable cause believing that the person has obtained service from, in, or through the inn or hotel with such intent to defraud or avoid payment, demands payment for such service.
Source. 1969, 295:1. RSA 580:9-d. 1973, 532:21, eff. Nov. 1, 1973.
Burlington City Ordinance
Illegal to do laundry in the library restroom
Scituate Town Ordinance
Illegal to transport alcohol on town roads... even if unopened
Sec. 8-4. Possession, consumption of alcoholic beverages on town property.
(a) No person shall be in possession of alcoholic beverages upon any lands owned or controlled by the town without permission of the town council, nor shall any person consume any alcoholic beverage within or upon any land so controlled or upon any street, highway, sidewalk, or within any motor vehicle parked within or upon any land owned or controlled by the town, or within any motor vehicle parked upon any road, highway or lane within the boundaries of the town.
(b) Any person violating this section shall be punished in accordance with section 1-4.
(Ord. of 8-10-72(2))
Illegal to build a "spite fence" higher than 5 feet
BOUNDARIES, FENCES AND COMMON FIELDS
476:1 Fence as Private Nuisance. –
Any fence or other structure in the nature of a fence, unnecessarily exceeding 5 feet in height, erected or maintained for the purpose of annoying the owners or occupants of adjoining property shall be deemed a private nuisance.
Source. 1887, 91:1. PS 143:28. PL 219:32. RL 269:32.
Illegal to keep town records where alcohol is sold
Sec. 30-97. Town and probate records not to be kept where
liquor is sold.
Town or probate records shall not be kept in any room in
which alcoholic liquor is sold, nor in any room from which
there is direct access to a room in which such liquor is
sold. Any town clerk or judge of probate violating the
provisions of this section shall be subject to the
penalties provided in section 30-113.
(1949 Rev., S. 4298.)
Illegal for candy to contain more than 1% alcohol
Chapter 270: Section 8. Selling candy containing alcohol.
Section 8. Whoever sells to a person any candy enclosing or containing liquid or syrup having more than one per cent of alcohol shall be punished by a fine of not more than one hundred dollars.
White Mountain National Forest Rules
Illegal to maintain the national forest without a permit.
In the White Mountain National Forest, persons caught raking the beaches, picking up litter, hauling away trash, building a bench for the park, or any similar activity without a permit, he/she may be fined $150 for ''maintaining the national forest without a permit."
Wells Town Ordinance
Illegal to feed or bait deer
80-17. Prohibited conduct; exceptions.
No person, except the Commissioner of the Maine Department of Inland Fisheries and Wildlife or his/her designee or the Director of the United States Fish and Wildlife Service or his/her designee, shall feed or bait deer in the Town of Wells. This prohibition shall not apply within the boundaries of the Rachel Carson National Wildlife Refuge, which is property owned by the United States and managed by the United States Fish and Wildlife Service.
Illegal to impersonate the town sealer, auctioneer, corder, or fence-viewer
11-14-2 Impersonation of town sealer, auctioneer, corder, or fence-viewer. Every person who shall falsely assume or pretend to be a town sealer of weights and measures, auctioneer, corder of wood, or fence-viewer, and shall act as such, shall be fined not less than twenty dollars ($20.00) nor more than one hundred dollars ($100).
Southington Town Ordinance
Sale, use, or possession of silly string banned
In 1996, in wake of a disruption at the town's Apple Harvest Festival where several parade attendees sprayed police officers and others with silly string, the town council passed an ordinance that bans the sale, use or possession of canned silly string at carnivals or parades and in public places. Violators will be fined $99.
Illegal to shoot at targets that resemble humans
PART I. ADMINISTRATION OF THE GOVERNMENT.
TITLE XX. PUBLIC SAFETY AND GOOD ORDER.
CHAPTER 140. LICENSES.
Chapter 140: Section 131. Licenses to carry firearms; Class A and B; conditions and restrictions.
[ Text applicable as provided by 1998, 180, Sec. 80.]
Section 131. All licenses to carry firearms shall be designated Class A or Class B, and the issuance and possession of any such license shall be subject to the following conditions and restrictions:
(a) A Class A license shall entitle a holder thereof to purchase, rent, lease, borrow, possess and carry: (i) firearms, including large capacity firearms, and feeding devices and ammunition therefor, for all lawful purposes, subject to such restrictions relative to the possession, use or carrying of firearms as the licensing authority deems proper; and (ii) rifles and shotguns, including large capacity weapons, and feeding devices and ammunition therefor, for all lawful purposes; provided, however, that the licensing authority may impose such restrictions relative to the possession, use or carrying of large capacity rifles and shotguns as it deems proper. A violation of a restriction imposed by the licensing authority under the provisions of this paragraph shall be cause for suspension or revocation and shall, unless otherwise provided, be punished by a fine of not less than $1,000 nor more than $10,000; provided, however, that the provisions of section 10 of chapter 269 shall not apply to such violation.
The colonel of state police may, after an investigation, granta Class A license to a club or facility with an on-site shooting range or gallery, which club is incorporated under the laws of the commonwealth for the possession, storage and use of large capacity weapons, ammunition therefor and large capacity feeding devices for use with such weapons on the premises of such club; provided, however, that not less than one shareholder of such club shall be qualified and suitable to be issued such license; and provided further, that such large capacity weapons and ammunition feeding devices may be used under such Class A club license only by such members that possess a valid firearm identification card issued under section 129B or a valid Class A or Class B license to carry firearms, or by such other persons that the club permits while under the direct supervision of a certified firearms safety instructor or club member who, in the case of a large capacity firearm, possesses a valid Class A license to carry firearms or, in the case of a large capacity rifle or shotgun, possesses a valid Class A or Class B license to carry firearms. Such club shall not permit shooting at targets that depict human figures, human effigies, human silhouettes or any human images thereof, except by public safety personnel performing in line with their official duties.
Fine for being a vagrant: Up to $100 and 6 months imprisonment
3901. Vagrant defined
A transient person, roving from place to place and living without visible means of support, who begs, or who rides or attempts to ride on a railroad freight train or engine without the consent of the person in charge thereof, or who enters or attempts to enter a dwelling house, barn or other building without the permission of the owners or occupants thereof, shall be deemed a vagrant. The act of applying to a town service officer for general assistance or to a police officer for lodging or subsistence shall not be evidence that such a person is a vagrant. (Amended 1967, No. 147, 11, eff. Oct. 1, 1968.)
3902. Penalty A vagrant shall be imprisoned for not more than six months or fined not more than $100.00. The court may further order, in case a fine is imposed, that, if such fine is not paid within 24 hours, the respondent be imprisoned for as many days as twice the number of dollars in the sentence, including the costs of detention and commitment. (Amended 1969, No. 131, 1, eff. April 23, 1969.)
Freeport City Ordinance
Illegal to sell mercury thermometers in the city
MERCURY THERMOMETER ORDINANCE
Retail Sale Prohibited. A person shall not sell or supply (including online retail) mercury fever thermometers to consumers and patients, except by prescription. The manufacturers of mercury fever thermometers shall supply clear instructions on the careful handling of the thermometer to avoid breakage and proper cleanup should a breakage occur with all mercury fever thermometers sold through prescriptions.
(ADOPTED JANUARY 16, 2001)
Illegal to play athletic games on Sunday without license... except Hockey and Ice Polo
Sports, Racing, and Athletics
Athletic Games on Sunday
41-6-3 Professional games permissible by license. Professional athletic games, except ice polo and hockey, may be played and held in any city or town on the first day of the week under a license therefor issued by the licensing authorities of the town or city in the manner designated under this chapter; provided, however, that the bureau of licenses of the city of Providence may license ice polo and hockey to be played or held in rinks or other enclosed buildings on the first day of the week.
Owners have one year to claim thair lost animals (Stray Beasts), but owe restitution to finder
If the owner of stray beasts appears within one year after the finding thereof, and proves title thereto, he shall, if they have not been sold under the preceding section, have restitution thereof upon payment, except as provided in section two, of all reasonable expenses incurred by the finder in keeping such beasts and in complying with this chapter; but if they have been sold he shall be entitled to receive the proceeds of the sale after deducting the expenses aforesaid. If no such owner appears within said year the beasts, or the proceeds, shall enure to the finder, provided he has complied with this chapter.