The ACLU filed suit in federal court Thursday to allow secret recording of police officers — an act that’s currently illegal under Massachusetts’ so-called wiretap law.

The organization is representing two men, activists who say, in certain situations, they are too fearful to openly record police officers performing their official duties. They’re not seeking money, but rather want the courts to create an exemption to the wiretap statute for those recording law enforcement officers.

“There are now times when they don’t feel safe openly recording police officers,” ACLU staff attorney Jessie Rossman said. “They would like to secretly record but they fear prosecution or arrest … It’s critically chilling the First Amendment rights of our clients.”


Named in the lawsuit are Boston Police Commissioner William Evans and Suffolk County District Attorney Dan Conley, who, through a spokesman, firmly pushed back against the idea of creating a loophole for recording police officers.

“With this lawsuit, the ACLU is suggesting that we strip some people of the law’s protection based on their employment,” spokesman Jake Wark said. “This is a dangerous and un-American line of thought.”

“Through the wiretap statute, Massachusetts’ elected representatives and its courts have called secret recording a crime,” he continued. “We take our direction from them, not this lawsuit.”

Boston police did not respond to a request seeking comment.

Under current law, a person needs to be “openly” recording — either by announcing it to the person or by clearly holding up a recording device, like a phone.

Recording police officer is protected under the First Amendment, a right cemented in 2011 when a Boston lawyer sued after he was arrested for recording police.

That case didn’t distinguish between open and secret recording. Rossman said she hopes the suit will translate that right to secret recordings in Massachusetts.

Secret recordings in other states have led to charges against police officers. In South Carolina, a passerby recorded a police officer shooting a fleeing man, Walter Scott, in the back. The officer was later charged with murder.


In other cases, according to the ACLU suit, videos recorded by civilians have “changed the public’s understanding of encounters between police officers and civilians.”

The lawsuit details times when people who are openly recording police have been threatened, including last year when a Boston police officer confronted a man recording him in Roxbury by waving what looked like a gun in his face. It turned out to be a realistic-looking toy.

The plaintiffs in the case, Eric Martin, of Jamaica Plain, and René Pérez, of Roxbury, both consider themselves civil rights activists, participating in demonstrations and educating others about their rights — including taping police. Both said they’ve experienced intimidation by police both locally and in other states.

Harvey Silverglate, an attorney who specializes in civil liberties, said he thinks — and hopes — the suit is successful. He thinks there should be a public policy exception under the First Amendment to the state’s wiretap law.

“I understand why the police don’t like it for precisely the reason I do like it,” he said. “It advances truth. It redresses the imbalance in the credibility of the ordinary citizen versus the police officer, especially in the court of law.”

Read the ACLU lawsuit here: