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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The Globe needs to hold itself to the same #MeToo standard as everyone else

Update: I am hearing the Globe was already working on a story about the situation before Kirk and Callahan went public. Good. Original item below.

Kirk Minihane and Gerry Callahan just wrapped up their Friday show on WEEI Radio (93.7 FM) after having spent most of the last hour talking about rumors that a Boston Globe journalist has left the paper following unspecified sexual-harassment charges. These rumors have been rampant within media and political circles the past few days, but they are unconfirmed. Kirk and Callahan ended the hour without directly identifying the journalist as a harasser, though they managed to get it out there indirectly.

What I don’t understand is why any news organization would risk letting someone else expose its own internal problems. The Globe has done great reporting on sexual harassment in the post-Harvey Weinstein world, from the plight of restaurant workers to the husband of Massachusetts Senate president Stan Rosenberg, now on leave while officials conduct an investigation. The Globe needs to hold itself to the same standard.

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