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A federal appeals court has upheld the right to secretly record police officers in the performance of their public duties, but has declined to act similarly with respect to other government officials because they have a greater expectation of privacy.
The ruling, by the First Circuit Court of Appeals, essentially strikes down the Massachusetts wiretap law, also known as Section 99, as it pertains to police officers. According to an analysis by Michael Lambert, a First Amendment lawyer with the Boston firm of Prince Lobel, “The decision means that Massachusetts journalists and citizens can, openly or secretly, record police discharging their duties in public without fear of criminal charges under the state’s wiretap law.”
The ruling came in response to two separate cases, both filed in 2016. The case involving the police was brought by a pair of civil-rights activists, K. Eric Martin and René Pérez. The broader case was brought by Project Veritas, a right-wing organization known for making undercover recordings of liberal targets and often editing them deceptively. (For instance, see this backgrounder assembled by the American Federation of Teachers.)
The appeals court upheld 2018 rulings by U.S. District Court Judge Patti Saris. The Dec. 15 decision, by Judge David Barron (himself a former journalist, as Lambert notes), reads in part:
We conclude that, by holding that Section 99 violates the First Amendment in criminalizing the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces and by granting declaratory relief to the Martin Plaintiffs, the District Court properly accounted for the values of both privacy and accountability within our constitutional system. We further conclude that the District Court properly rejected Project Veritas’s First Amendment overbreadth challenge, in which the organization sought to invalidate the measure in its entirety, given the substantial protection for privacy that it provides in contexts far removed from those that concern the need to hold public officials accountable.
As Lambert observes, openly recording police officers who are performing their duties has been legal in Massachusetts since 2011 regardless of whether they have given their consent. Judge Barron’s decision now legalizes secret recordings of officers as well. The issue has drawn attention not just in Massachusetts but across the country as smartphones have made it increasingly easy for citizens to document police conduct and misconduct. The Black Lives Matter movement has been fueled in part by such videos — the best known example being the police killing of George Floyd earlier this year.
Matthew Segal, legal director of the ACLU of Massachusetts, which represented Martin and Pérez, said in a statement:
The right to record the police is a critical accountability tool. Amid a nationwide reckoning with police brutality and racial injustice, the Court has affirmed the right to secretly record police performing their pubic duties.
A final wrinkle worth noting: Retired Supreme Court Justice David Souter was among the three appeals court judges who presided.