SJC rules that deception in recording someone does not violate the law

Joe Curtatone. Photo (cc) 2019 by the Somerville Media Center.

The state Supreme Judicial Court on Monday issued an important — and, to me at least, surprising — clarification of the Massachusetts wiretapping law, ruling that it’s not necessary to obtain someone’s consent before recording them. All that’s needed, the court said, is to inform the second party that they’re being recorded. That doesn’t change even if the person making the recording lies about their identity. Here’s Travis Andersen’s account in The Boston Globe.

The case involves Kirk Minihane of Barstool Sports, who in 2019 recorded an interview with Somerville Mayor Joe Curtatone by claiming to be Globe columnist Kevin Cullen. Minihane then played the interview on his podcast. Curtatone sued, arguing that he would not have agreed to being recorded if he had known he was speaking with Minihane rather than Cullen. Justice Frank M. Gaziano writes:

Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against “interception” within the act.

And here’s Gaziano’s conclusion:

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

The first indication of where the case might be headed came earlier this year, when the ACLU and the Reporters Committee for Freedom of the Press filed a brief in support of Minihane and Barstool.

Massachusetts has often been described as a “two-party consent” state when it comes to recording conversations. But even before Minihane recorded Curtatone, it was clear in some legal circles that the word “consent” was misleading. For instance, here is an explanation of the law published several years ago by the now-defunct Digital Media Law Project at Harvard’s Berkman Klein Center for Internet & Society:

Massachusetts’s wiretapping law often referred to is a “two-party consent” law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium…. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

Even after Monday’s SJC ruling, the law in Massachusetts remains unusually strict. According to the law firm Matthiesen, Wickert & Lehrer, 38 states plus the District of Columbia merely have a “one-party consent” law. Since the person making the recording has obviously given their consent, that means recording someone secretly in those states is legally permissible.

I tell my students that if they want to record an interview, whether in person or by phone, to ask for the subject’s consent. Then, after they turn on their recorder, tell them that they’re now recording and ask if that’s all right. That way, not only do they have the interview subject’s permission, but they have that permission on record. Minihane’s victory doesn’t change the ethics of recording someone without their knowledge.

One aspect of Monday’s ruling worth thinking about is that two-party consent, even under a looser definition of “consent,” can make it harder to engage in certain types of investigative reporting. Minihane obviously was just recording Curtatone for entertainment purposes. But undercover reporting, though less common than it used to be (thanks in part to the Food Lion case), can be a crucial tool in holding the powerful to account.

In Massachusetts, it remains illegal for a reporter to secretly record someone. The SJC’s decision doesn’t change that.

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What we know so far about the Kevin Cullen investigation

With Boston Globe columnist Kevin Cullen’s fate in the hands of outside investigators, I thought I would pull together what we know so far. I’ll begin with an internal memo that editor Brian McGrory sent to the staff late last week, a copy of which I obtained from several sources. We talked about the memo Friday on “Beat the Press” (above).

I hope you can understand our desire to seek facts before we address the assertions that have been publicly raised about the work of our colleague, Kevin Cullen. That said, I want to offer an update on the process. We’ve enlisted Kathleen Carroll and Tom Fiedler to oversee the review. Their involvement will help assure objectivity as well as speed. Kathleen is the former executive editor of the AP and someone universally respected across the industry. Tom is the dean of the BU College of Communication, the former executive editor of the Miami Herald, and someone whose calling card has always been his integrity. In addition, Daniel Okrent, the former public editor of the New York Times, has agreed to read their report and weigh in as necessary.

The review will consist of two-prongs. First, Kathleen and Tom will focus on marathon-related issues. Separately, we’re undertaking a broader review of Kevin’s work, initially in-house, but we’ll bring in outside help if needed. The first part I’m hoping will be completed within a couple of weeks.

You may see Kathleen and Tom around the newsroom. If they seek your help, please give it to them.

This work, unpleasant as it is, is important to our institutional credibility. I’ll be back to you again when I have more to report.

The investigation was prompted by Cullen’s April 14 column marking the fifth anniversary of the Boston Marathon bombings. The column has several problems. First, a reader would almost certainly think Cullen was claiming that he was at the finish line in 2013, even though he has said on other occasions that he was about a mile away. As I’ve said several times, the language strikes me as deliberately ambiguous, as though Cullen wanted to create that misimpression, even though he doesn’t come right out and say it. Second, there are apparent reporting errors as well, particularly regarding the actions and identities of the firefighters he mentions.

All of this has been fodder for two weeks on the “Kirk and Callahan” show on WEEI Radio (93.7 FM), which was the first to pick up on the discrepancies. The full details can be found in this blog post by Minihane, which combines fact, speculation (“It may be all true, though I seriously doubt it,” he wrote of a different Cullen column), and vitriol. But give Minihane his due. There are real problems with Cullen’s column, and we wouldn’t be here if not for WEEI. Cullen has been placed on paid leave pending the outcome of the investigation.

We talked about the Cullen situation on “Beat the Press” last Friday, April 20, and again on April 27 (clip above). Last week my colleague Emily Rooney added her own analysis, reporting that WEEI deceptively edited a Cullen interview that appeared in an HBO documentary. In the more recent clip, we all agreed that the Globe should be more transparent in letting the public know what’s going on beyond this editor’s note, which was published a week ago online and in print.

Also last week, Don Seiffert of the Boston Business Journal reported on the investigation and spoke with Marcus Breen of Boston College and me. Make of it what you will, but I was struck that Bill Richard, father of the late Martin Richard, whose family is mentioned in Cullen’s column, declined through a spokeswoman to comment.

And that, for the moment, is where things stand. As for myself, I’m a longtime admirer of Cullen’s work. Though I don’t know him personally, we’ve exchanged a few friendly greetings over the years. We should all be willing to wait and see if the investigation finds that the April 14 column represents a momentary lapse — or is an example of something more pervasive.

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Lawyers for Jack Dunn and ‘Spotlight’ engage in war of words

The dispute between Boston College spokesman Jack Dunn and the makers of “Spotlight” is escalating. “Spotlight,” as you no doubt know, is a movie about The Boston Globe’s Pulitzer Prize-winning reporting on the pedophile-priest scandal in the Catholic Church.

For the past few days, starting with a Kevin Cullen column in Sunday’s Globe, Dunn has been making media appearances claiming that he was falsely portrayed in the movie as uncaring toward victims at BC High School. The filmmakers have pushed back hard, arguing that the depiction of Dunn is accurate and that it was vetted by Globe reporters Walter Robinson and Sacha Pfeiffer.

According to an exchange of letters that I obtained this evening, Dunn’s lawyers are accusing the filmmakers of portraying Dunn in a way that is “defamatory” as well as “false, malicious and fabricated.” The letter on behalf of Dunn, addressed primarily to screenwriters Tom McCarthy and Joshua Singer (McCarthy is also the director), says in part:

In general, the film, in dramatic fashion, divides the individuals it depicts into those who heroically searched for the truth about the horrific sexual abuse of children by members of the clergy and those who sought to suppress facts about the abuse. In a critical scene in the film, which is nearly entirely fabricated, Spotlight squarely and falsely places Mr. Dunn in the category of those who actively attempted to interfere with and thwart the efforts of the Boston Globe reporters to unearth and report on the abuse scandal.

In their answer, the filmmakers’ lawyers “respectfully, but vigorously, disagree with your allegation that the film defames Mr. Dunn.” Here’s a key excerpt:

Most importantly, the film’s portrayal of Mr. Dunn is substantially true. It is based on the recollections of Walter Robinson and was vetted by him and Sacha Pfeiffer. Mr. Dunn’s overarching concern for Boston College High School (and Boston College) is reflected in contemporaneous and later media accounts. Indeed, there is no evidence that Mr. Dunn was an outspoken advocate for transparency or accountability before the Boston Globe broke the story, or that he came forward on his own to initiate an investigation into abuse at BC High before the Globe’s coverage forced the school to act.

I am posting these rather lengthy documents in the interest of putting them before the public in advance of what could be a significant legal battle.

Click here (pdf) for the full letter (with exhibits) from Dunn’s lawyers, David H. Rich and Howard M. Cooper of the Boston firm Todd & Weld.

Click here (pdf) for the full letter (also with exhibits) from the filmmakers’ lawyer, Alonzo Wickers IV of the Los Angeles firm Davis Wright Tremaine. No, I do not know why parts of it have been highlighted in yellow.

For background and some relevant links, see my commentary for WGBHNews.org, which has been updated with a statement from the filmmakers.

Update: The Globe has now published an article on the dispute.

Some reflections on Dzhokhar Tsarnaev’s apology

Dzhokhar_Tsarnaev_(crop)
Dzhokhar Tsarnaev

It’s impossible to live in the Boston area and not have an opinion about Boston Marathon bomber Dzhokhar Tsarnaev’s apology, which he delivered in federal court Wednesday as he was formally sentenced to death. For what it’s worth, here’s mine.

I think he was sincere — up to a point. I’m sure he sincerely wishes he didn’t find himself in this predicament, and he would have to be inhuman not to be affected by the victims’ stories that he heard during his trial. He is not inhuman, though he committed inhuman acts.

More than anything, though, I was struck by his aggrandizement and narcissism. He very much wants to impress us with his religious piety. Genuine humility and remorse? Not at the top of his agenda. I’ve heard a number of people say he apologized only because his lawyers pushed him into it. That may be true, but they couldn’t have been very happy with his smug self-regard — or with his thanks to them and others for making his life behind bars so “very easy.”

I was also struck by Kevin Cullen’s observation in The Boston Globe that Tsarnaev spoke with “an affected accent,” which suggests that he remains deeply under the influence of the jihadist propaganda on which he and his brother, Tamerlan, gorged themselves before carrying out their unspeakably evil mission. (And for the umpteenth time: Why couldn’t we see and hear Tsarnaev for ourselves?)

In the years to come, I hope Tsarnaev comes to a more genuine sense of repentance. And though it’s only natural that we focus on what motivated Tsarnaev to act as he did, we should never forget that the people who truly matter are Martin Richard, Krystle Campbell, Lingzi Lu and Sean Collier, as well as their friends, families and those who were injured.

Where Boston’s papers stand on death for Tsarnaev

The Boston Globe today offers some powerful arguments against executing convicted Boston Marathon bomber Dzhokhar Tsarnaev. Metro columnists Kevin Cullen and Yvonne Abraham weigh in, as do the paper’s editorial page, civil-liberties lawyer Harvey Silverglate and retired federal judge Nancy Gertner. (Columnist Jeff Jacoby has previously written in favor of death for Tsarnaev.)

Over at the Boston Herald, the message is mixed. In favor of the death penalty are columnist Adriana Cohen and editorial-page editor Rachelle Cohen. The lead editorial calls for the death penalty as well. Columnist Joe Fitzgerald is against capital punishment for Tsarnaev. Former mayor Ray Flynn offers a maybe, writing that he’s against the death penalty but would respect the wishes of the victims’ families.

Globe wins Pulitzer for ‘story none of us wanted to cover’

Brian McGrory during the Pulitzer announcement.
Brian McGrory during the Pulitzer announcement. (Photo courtesy of The Boston Globe.)

This article was published earlier at WGBH News.

Within moments of the announcement that The Boston Globe had won the Pulitzer Prize for Breaking News Reporting, Martine Powers tweeted from the newsroom. “This was a story none of us wanted to cover,” she quoted editor Brian McGrory as saying. The staff, she said, then observed a moment of silence at McGrory’s request for the victims of the Boston Marathon bombings.

The Globe easily could have won two or three Pulitzers for its coverage of the bombings and their aftermath. The breaking-news award, of course, was well-deserved, and frankly it was unimaginable that it would go to anyone else. But the paper also had worthy marathon-related finalists in Breaking News Photography (John Tlumacki and David L. Ryan) as well as Commentary (Kevin Cullen, who emerged as the voice and conscience of the city after the attack).

McGrory’s classy response to winning underscores the sad reality that the Globe’s excellent coverage was driven by a terrible tragedy — the worst terrorist attack on U.S. soil since Sept. 11, 2001. (The Globe was also a finalist in Editorial Writing, as Dante Ramos was honored for a non-marathon-related topic: improving the city’s night life.)

The Pulitzer also caps what has been a remarkable year for the Globe. On Marathon Monday 2013, McGrory was relatively untested as editor and the paper’s prospects were uncertain, as the New York Times Co. was trying to unload it for the second time in four years.

The Globe’s marathon coverage — widely praised long before today’s Pulitzers were announced — have defined McGrory’s brief term as editor as surely as the paper’s pedophile-priest coverage (which earned a Pulitzer for Public Service) defined Marty Baron’s. Moreover, the Globe now has a local, deep-pockets owner in John Henry who’s willing to invest in journalism.

But the focus should be on Martin Richard, Krystle Campbell, Lingzi Lu and Sean Collier, as well as their families and all the other survivors. Good for McGrory for reminding everyone of that.

A couple of other Pulitzer notes:

• A lot of observers were waiting to see whether the judges would honor the stories based on the Edward Snowden leaks. They did, as the Pulitzer for Public Service went to The Guardian and The Washington Post.

Glenn Greenwald and Laura Poitras, then affiliated with The Guardian and now with the start-up First Look Media, as well as Barton Gellman of the Post, were the recipients of the Snowden leaks, which revealed a vast U.S. spying apparatus keeping track of ordinary citizens and world leaders both in the United States and abroad.

The choice is bound to be controversial in some circles. U.S. Rep. Peter King, R-N.Y., has already called the award “a disgrace.” But it was the ultimate example of journalism speaking truth to power, and thus was a worthy choice.

• The oddest move was the Pulitzer judges’ decision not to award a prize in Feature Writing. I thought it might go to the New York Times’ series “Invisible Child: Dasani’s Homeless Life,” or possibly to the Globe’s “The Fall of the House of Tsarnaev.” (I should note that neither of those stories was listed as a finalist.)

The Pulitzer process can be mysterious. But it would be interesting to see if someone can pry some information out of the judges to find out why they believed there wasn’t a single feature story in 2013 worthy of journalism’s highest honor.

Whitey Bulger plays unfavorites in the press

James_Whitey_Bulger_capturedA few days ago we learned that Whitey Bulger had named Boston Globe reporter Shelley Murphy, Globe columnist Kevin Cullen, Boston Herald columnist Howie Carr and former Globe reporters Dick Lehr and Gerard O’Neill as possible witnesses in his federal trial.

Today we learn the likely reason: the five, all of whom have written books about Bulger’s murderous ways, might be barred from attending the trial if Judge Denise Casper rules that potential witnesses must be kept out of the courtroom.

Murphy writes that her paper has asked Casper to allow her and Cullen to attend the trial on the grounds that they are the Globe’s leading experts on the Bulger case, having covered it since the 1980s. She reports that prosecutors have called Bulger’s witness list a ploy to keep out certain media and non-media witnesses.

In the Herald, Laurel Sweet quotes Assistant U.S. Attorney Brian Kelly as saying, “It’s not a real witness list. He’s just putting names on there in order to keep them out of the courtroom.”

Let’s hope Judge Casper refuses to go along with this travesty.

Two more for your must-read list

Eric Moskowitz’s Boston Globe interview with the Tsarnaev brothers’ carjacking victim is just astonishing — detailed, full of suspense (even though we know the outcome) and tautly written. And the Globe’s Kevin Cullen continues to show why he has emerged as the voice of the city following the Boston Marathon bombings.

Shelley Murphy talks about her Whitey Bulger book

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Update: This, by Northeastern’s Matt Collette, is much better than my tweets.

Shelley Murphy has been chasing the notorious gangster James “Whitey” Bulger since she was a young reporter at the Boston Herald. Now a Boston Globe reporter, she and Globe columnist Kevin Cullen are the authors of a new book, “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice” (Norton).

Murphy, who graduated from Northeastern one year after I did (I won’t say when), spoke on campus today before a packed room in Snell Library. She shared some great stories — some funny, some harrowing. I live-tweeted the event, and offer some of what she said below.

Poynter analyst hails Globe’s prospects

Rick Edmonds

Earlier this month, before the New York Times Co. announced it was putting The Boston Globe up for sale for the second time in four years, Poynter Institute business analyst Rick Edmonds sat down with Josh Benton of the Nieman Journalism Lab for the lab’s weekly podcast, “Press Publish.”

Toward the end of their nearly hour-long conversation, Benton asked Edmonds which newspapers he thought had the brightest prospects over the next few years. Edmonds responded that he could think of four major metros that were getting it right: the Globe, the Seattle Times, the Milwaukee Journal Sentinel and the Tampa Bay Times — formerly and still better known as the St. Petersburg Times.

(It should be noted that Poynter owns the Tampa Bay Times, although I think anyone would point to that paper as one model for how to do it right.)

What Edmonds meant: the four papers had done a better job than most of maintaining the quality and depth of their journalism while at the same time achieving some measure of success financially. Earlier in the podcast, Edmonds voiced his enthusiasm for flexible online paywalls such as the Globe’s (now becoming less flexible).

As another prominent newspaper analyst, Ken Doctor, observes, a lot of newspapers are likely to be sold in the months ahead. The business has recovered slightly since the depths of 2009 and prices are low. Of course, prices are low because the long-term prospects for newspapers remain grim. Still, there are no doubt a number of prospective owners who have enough money and ego to think that they will be the great exception.

Seen in that light, the Globe is a prime property that can be acquired for an attractive price. “The Globe isn’t going anywhere,” Globe columnist Kevin Cullen writes. “It’s changing owners.”