This past October, when Simon Glik used his cell phone to record Boston police officers making what he thought was an overly forceful arrest on Tremont Street, he didn’t think he would be the one who ended up in the back of a police cruiser. But cops saw Glik using his cell phone’s camera with its sound-recording feature, so they arrested him for breaking the Massachusetts law that prohibits secret electronic recording, deemed “wiretapping.”
Was he wiretapping, though? In Massachusetts, a “two-party consent” state since the 1960s, if one participant in a conversation wants to record it, he or she needs to notify the other. Courts have interpreted this state’s law to prohibit secretly recording not only one’s own phone conversation, but even a face-to-face encounter. (Other states, like New York, are “one-party consent” jurisdictions, where only the taper, or a third party to whom the taper has given permission, needs to know the conversation is being recorded.)
Glik, a 31-year-old lawyer, suspected that the cops who arrested him wanted more to protect themselves from a possible misconduct complaint than to enforce the state’s privacy laws. After all, he wasn’t the first to be arrested for recording on-duty officers. And as long as the law stays on the books, he’s unlikely to be the last busted for performing a civic duty.
Those who have tried to document police officers’ abusive speech and conduct in Massachusetts, New Hampshire, and Pennsylvania have been arrested and convicted under those states’ wiretapping laws. And in 2006, the Phoenix profiled citizen activist Jeffrey Manzelli, who was convicted three years earlier of surreptitiously recording an MBTA police officer at an anti-war rally.
But how can a law meant to protect citizens’ privacy be turned against a civic-minded passer-by who documented an official police operation — an arrest — on a public street?
For that explanation, we must go back to the controversial 2001 Commonwealth v. Hyde ruling, in which Massachusetts’s highest court stated that the wiretap law was “intended . . . to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge.”
The defendant in that case, Michael Hyde, a long-haired musician who drove a Porsche, was harassed by the police in 1998 after they erroneously suspected that Hyde had drugs in his car. Having secretly recorded the abusive traffic stop, Hyde later went down to the police station to submit the tape as evidence for his police-misconduct complaint. Instead, he was arrested for wiretapping.
It’s no secret
Like many cell phones, Glik’s could record both audio and video, and he held it out in the open, where the recording was not at all secret. Still, his arresting officers relied on the wiretapping statute as the basis for arresting him. As icing on the cake, they piled on charges of disturbing the peace (for taping the scene) and aiding the alleged near-escape of a prisoner (the taping supposedly distracted the police, creating the risk the arrestee would run away, which he did not).
Glik appeared in Boston Municipal Court with his lawyer, June Jensen of Wayland, this past month to ask the judge to dismiss the Commonwealth’s charges against him. Neither the criminal complaint nor the police report on their face stated facts to demonstrate that what Glik did was prohibited by the laws under which he was charged, they said. Several days later, Judge Mark Summerville dismissed the charges, agreeing with Glik that non-secret recordings were lawful.
The Hyde decision specifically said that the defendant would not have been convicted had “he held the tape recorder in plain sight,” Summerville noted. He also wrote in his scholarly opinion that “distract[ing]” police officers is not the same as disturbing the peace. (The Commonwealth had previously dropped the charge of aiding the escape of a prisoner because the suspect whose arrest Glik recorded didn’t meet the definition of “prisoner.”)
Summerville’s decision is good news for Glik, who had, ironically, been seeking a job as a prosecutor, but who has had difficulty getting hired — despite graduating at the top of the New England School of Law class of 2006 — because of the outstanding criminal charges. Even so, neither the Hyde opinion nor Summerville’s decision is likely to stop police in the future from arresting citizens who record their misconduct.
The explicit statement in Hyde, that the law prohibits only secret recordings, creates a perverse incentive for cops to exaggerate or lie about whether a citizen was surreptitiously recording them in order to obtain a conviction in future cases. The small size of cell-phone cameras makes it easy for a cop to claim that at least part of the recording was done before the police noticed. And if it comes down to an officer’s word against the citizen’s, who do you think wins?