Contrary to popular belief, in many states, recording the police is a crime.
Laws in 38 states plainly allow citizens to openly film the police in public. However, there are 12 states–California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington–where wiretap laws prohibit citizens from secretly recording police. These states require “two-party consent,” which means every party must agree before they are recorded.
But in a victory against Boston’s police commissioner and district attorney, a federal judge ruled on Tuesday that a Massachusetts law used by Massachusetts police to target people who secretly recorded them was unconstitutional.
Wiretap laws were instituted in the ’60s when audio recording devices became so small and widely available that there was a need for legislation to prevent people from being surreptitiously recorded. But law enforcement officers in Massachusetts have repeatedly used a 1968 wiretap law called “Section 99” to arrest citizens who secretly record police with cell phones.
In 2007, according to Slate, Boston police arrested Simon Glik after he filmed officers brutally punching a man in Boston. A trial court eventually dismissed the charges, after which Glik and the ACLU of Massachusetts filed a lawsuit against the department for violating Glik’s civil rights. Glik won the lawsuit in 2011 when the 1st U.S. Circuit Court of Appeals found that the officers had infringed on Glik’s freedom of speech. The police department settled the lawsuit for $170,000.
But Massachusetts police continued to use Section 99 to target people who recorded officers, Slate explains:
- In 2012, Shrewsbury, Mass. police arrested Irving Espinosa-Rodriguez for teaching a man how to covertly record a traffic stop.
- In 2014, the Chicopee Police Department used Section 99 to charge Karen Dziewit for filming the officers who arrested her.
- In 2015, the Hardwick Police Department charged Destiny McKeon as an accessory to illegal wiretapping for not alerting police officers that her friend was recording them.
So in 2016, the ACLU filed a lawsuit on behalf of Eric Martin, who works for a Boston nonprofit soup kitchen and teaches “know your rights” seminars; and René Pérez, a civil rights activists who pushes for police accountability. The suit named Boston Police Commissioner William Evans and Suffolk County’s district attorney Daniel Conley as the defendants and alleged:
And on Tuesday, a federal court ruled that recording law enforcement officials performing their duties in public is protected by the First Amendment, even if the recordings are done in secret. In her order, Judge Patti Saris writes:
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...
“We all suffer when fear of retribution or prosecution stifles conversations about police accountability,” said Pérez, a plaintiff and Roxbury resident. “This ruling is a step towards greater police accountability and towards the safe, effective exercise of the right to record the police.”