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Judge rules again that people have the right to make secret audio recordings of police in public places

A federal judge ruled today that a Massachusetts law that can be used to prosecute journalists and others making secret audio recordings of police and public officials in public spaces is unconstitutional.

The ruling by US District Court Judge Patty Saris would, if upheld, nullify a part of the state's wiretap law, known as Section 99, that bars such recordings, and would extend earlier rulings that people have the right to record police in public places as long as they let police know they're being recorded.

Saris issued her thoughts on the constitutionality of the law in rejecting a request by the state Attorney General's office to dismiss two lawsuits against Boston Police and the Suffolk County District Attorney's office, one by a pair of local activists who want to record police in public and the other an out-of-state rightwing activist who specializes in "gotcha" videos and who says he has the right to secretly record Massachusetts public officials in "investigations" of such matters as immigration.

On the core constitutional issue, the Court holds that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions. Because Section 99 fails intermediate scrutiny when applied to such conduct, it is unconstitutional in those circumstances.

Saris gave the state until Jan. 10 to negotiate wording with the lawyers in the two cases - which include the ACLU - that could be used to bar police from attempting to charge people who secretly record officials in public places. Boston Police currently use training materials that say that while people cannot be arrested for publicly recording officers in a public place, they can for making secret recordings.

The Attorney General's office is reviewing the ruling, a spokesperson said.

Saris derived part of her ruling from a 2011 ruling in which the US Court of Appeals for the First Circuit, which covers New England and Puerto Rico, ruled police should not have arrested a lawyer who used his phone to capture an arrest on Boston Common, something the officers involved knew he was doing.

In her ruling today, Saris wrote the Constitution would have allowed that lawyer to secretly record audio from the arrest as well. She said that also applied to K. Eric Martin of Jamaica Plain and Rene Perez of Roxbury, who say they secretly recorded interactions between police and the public on the Common and at Arizona BBQ in Roxbury - and to James O'Keefe, who says he wants to use "hidden necktie cameras, purse cameras, eyeglass cameras, and cameras whose lenses are small enough to fit into a button or rhinestone" as he seeks to embarrass Democratic officials.

Saris rejected an argument by O'Keefe that the law sought to stop his brand of investigation, saying the law was, in fact, "content neutral." And she acknowledged that police, at least, would have legitimate reasons to seek to ensure certain meetings, for example, with informants or crime victims in public places are not recorded secretly. But, she continued, these are exceptions, not the Constitutional default:

When such situations arise, police are free to "take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations." Alvarez, 679 F.3d at 607; see also Glik, 655 F.3d at 84 ("[T]he right to film . . . may be subject to reasonable time, place, and manner restrictions."). Nothing in the relief these plaintiffs seek would require otherwise. If an officer needs to protect the safety of an informant or her fellow officers, or seeks to preserve conversational privacy with a victim, the officer may order the recording to stop or to conduct the conversation at a safe remove from bystanders or in a private (i.e., non-public) setting. See Alvarez, 679 F.3d at 607. ("Police discussions about matters of national and local security do not take place in public where bystanders are within earshot . . . ."). A reasonable restriction would remove the conversation from the scope of the relief sought (and ordered) in this case. In short, Section 99 prohibits all secret audio recording of any encounter with a law enforcement official or any other government official. It applies regardless of whether the official being recorded has a significant privacy interest and regardless of whether there is any First Amendment interest in gathering the information in question. "[B]y legislating this broadly -- by making it a crime to audio record any conversation, even those that are not in fact private -- the State has severed the link between [Section 99’s] means and its end." Alvarez, 679 F.3d at 606.

Saris left some issues to later cases - for example, whether a restaurant to which the public is allowed entry is a "public place," because public places have different privacy expectations than private property. But on the whole, she concluded:

The Court declares Section 99 unconstitutional insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions. The Court will issue a corresponding injunction against the defendants in these actions. The parties shall submit a proposed form of injunction by January 10, 2019.

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Comments

...and long overdue. Twisting wiretapping laws to prevent police accountability for public words and deeds was the worst sort of scam by cops. Let us praise common sense that brings reality to bear.

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Voting closed 59

What if I don't want to be recorded while talking to the police?

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Ask to talk to them in private.

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Read the article and legal decision, it covers that.

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Yay for free speech, but that guy's still a schmuck. Maybe next time you want to pull a fast one on the WaPo, recruit somebody who isn't a moron to help you.

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O'Queef needs to learn the difference between recording stuff and making shit up with what you recorded and some extra editing, etc.

Also, his attempts to wiretap a US Senator are not protected here.

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Then who is?

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Going in to a public official's office to see if the phones are off the hook because nobody would answer during the run-up to Obamacare is a wiretap. Good to know.
"It's called transparency, Nancy,"

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What is the political affiliation of the local activists? You take pains to tell the reader about O'Keefr

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James O'Keefe, (R)eprehensible human, and two completely unknown local activists, who are literate enough to put together the legal filing, and are thus assumed (D).

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But what other government employees and officials are included?

Can you secretly record a conversation in the (publicly accessible) break room in a town hall? Can you secretly record a conversation with the governor in the halls of the State House? A mayor or selectman in the parking lot? A town meeting member on the sidewalk?

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In public places.

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Does it include an elected representative town meeting member (who is not subject to open meetings law)?
Does it include an appointed person working unpaid on some committee (and in public but not at the meeting)?
Does it include a custodian who works for the Commonwealth of Massachusetts? A clerk? A mechanic?
Does it include a contractor who works for a private firm hired by the Commonwealth?

I'm having a hard time figuring out where "the line" is...

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Only if they are carrying out official duties. So there is definitely legal wiggle room here and probably will need to be litigated to clarify further.

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Any knowledge of whether this applies to DCF? I'm a former employee, and I know the stance has been that DCF employees are not allowed to consent to be recorded, are instructed to view people recording as uncooperative, and DCF's fair hearings office (which does not abide by rules of evidence and accepts anything a DCF worker says as fact) does not accept recordings made without consent. I've long thought it was ridiculous that workers aren't held more accountable, particularly considering that most are not licensed clinicians, so many are heavily biased, and some have been found to outright fabricate evidence. They actually get much more discretion than cops, in that if a DCF worker says something is inappropriate, this is considered evidence that it was and courts must give deference. I've long thought that all DCF interviewing should be video recorded.

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and has protections for pretty much every counter-example cited by boot-licking right-wingers as reasons that we must sanctify the right of police to beat down anyone they don't like. (c.f the Alvarez restrictions) .

Thus I look forward to a barrage of poorly-spelled complaints about Adam being a partisan hack who hates the police.

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Adam is a parisian hack!

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Closest I've gotten is Quebec City.

Checkmate, trolls!

And take a lesson from my experience: Don't type on your phone. You'll only hurt yourself.

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Up top, Project Veritas was a bunch of right wing trolls. Now here you assert that we're supposed to complain about this ruling?

How exactly did you manage to perform such a masterful act of doublethink?

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Someone learned a new phrase!

He doesn't know what it means, but he's going to use it in a sentence now!

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If you read my original post, you'll see the judge was ruling on two separate, but similar, lawsuits. Is that really that hard a concept for you to grasp? Don't worry - I've heard there are adult-ed classes you can take if you need help with your reading abilities. Do you need any recommendations?

In any case, I wrote about O'Keefe's lawsuit when it was just him (he filed before the two locals). I'm no lawyer, but I've heard of the concept of good laws sometimes coming about because of bad people.

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If my home or business camera records police and others in public and they aren't told they are on camera is that footage legal? I thought all activity on public streets could be recorded, are we now excluding certain people, in this case police and public officials? To be clear, where cameras footage contradicts or supports claims but contain images of police now illegal regardless of content?

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