Secretly Recording Police Officers Is Legal: MA Judge Ruling

BOSTON, MA — A federal judge in Boston ruled that secret audio recordings of government officials, including police officers, on the job is legal.

In a 44-page summary judgment Chief US District Judge Patti Saris found that a Massachusetts law prohibiting secret oral recordings only applied to those not working for the government and described recording government officials as a “basic, vital, and well-established liberty safeguarded by the First Amendment.”

It rolls back a 2001 court ruling in which a man was convicted of violating the state's wiretap law when he secretly recording a police officer during a traffic stop and then brought it into the police station to file a complaint.

The ruling stems from two lawsuits filed against former Suffolk District Attorney Dan Conley by the American Civil Liberties Union of Massachusetts on behalf of two Boston activists wanting to record police and Project Veritas.

Veritas (defined as a nonprofit organization that engages in undercover journalism in court documents), which brought the case against Conley and Boston Police Commissioner William Gross, argued that Mass Law Chapter 272 Section 99's wiretap law violates the First Amendment insofar as it prohibits the secret audio recording of government officials performing their duties in public.

The judge agreed.

"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," reads the judgment released Dec. 10.

Since 2011, the Suffolk County District Attorney’s Office has opened at least 11 case files that involve a felony charge under the wiretap law. And the Boston Police Department has applied for a criminal complaint on a Section 99 violation against at least nine individuals for secretly recording police officers performing their duties in public.

The district attorney argued citizens and public officials alike should have the right to be on notice of when they are being recorded.

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Illegally eavesdropping on an oral or telephone conversation is punishable by a fine of up to $10,000 and a jail sentence of up to five years. Disclosing or using the contents of such communications is a misdemeanor punishable with a fine of up to $5,000 and imprisonment for up to two years.

“Project Veritas has made First Amendment history,” Veritas founder James O’Keefe said in a statement. His organization, which targets and secretly films people and organizations it considers liberal had four undercover projects it had in mind when bringing the case:

In the court documents Project Veritas said it wanted the freedom to go undercover and record landlords renting unsafe apartments to college students; government officials, including police officers, legislators, or members of the Massachusetts Office for Refugees and Immigrants, to ascertain their positions on “sanctuary cities”; “protest management” activities by both government officials and private individuals related to Antifa protests; and interactions with Harvard University officials to research its endowment and use of federal funds.

Veritas, which has been criticized for its tactics, is most recently known for its effort to hire a woman to pose undercover as a victim of sexual assault to trick the Washington Post into writing falsely on it.

The Bay State Banner published the Boston Police training video on Youtube on this in 2014.

It was first circulated among officers in November 2010, then again in October 2011, and most recently in May 2015, according to court documents.

Related: McCaskill Demands Investigation Into Project Veritas Recordings

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Photo by Jenna Fisher/Patch Staff

Jenna Fisher can be reached at Jenna.Fisher@patch.com or by calling 617-942-0474. Follow her on Twitter and Instagram (@ReporterJenna).