The Dark Side of "Privacy Protections," Continued:

Last month, I linked to a story about someone who was "convicted of violating state wiretapping laws" for "conceal[ing] a camera to videotape a Boston University police sergeant ... during a 2006 political protest." I wrote that this was outrageous, but entirely consistent with a 2001 Massachusetts Supreme Judicial Court decision in Commonwealth v. Hyde, which is based on Massachusetts' extremely broad privacy law. The court there upheld a conviction of a person who had "secretly tape recording statements made by police officers during a routine traffic stop" of himself. This, I argued, was the dark side of "privacy" — a law aimed at protecting privacy ends up wrongly restricting people's liberty, and people's ability to protect themselves against police misconduct. Here's part of the court's rationale:

We reject the defendant's argument that the statute is not applicable because the police officers were performing their public duties, and, therefore, had no reasonable expectation of privacy in their words. The statute's preamble expresses the Legislature's general concern that "the uncontrolled development and unrestricted use of modern electronic surveillance devices pose[d] grave dangers to the privacy of all citizens of the commonwealth" and this concern was relied on to justify the ban on the public's clandestine use of such devices.

And this protection of "privacy" extends not just to allegedly misbehaving cops but even to kidnappers calling in ransom requests: "In Commonwealth v. Jackson, this court rejected the argument that, because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim's brother would not be prohibited ...."

These incidents aren't necessarily an indictment of all such laws. Perhaps such a law could be properly drafted to exclude audiotaping of conversations with the police, or of conversations with people who one reasonably believes are trying to extort something from you or threaten you. But the incidents are a warning that not all laws proposed in the name of "privacy" are good, especially when they try to protect one person's privacy by constraining another's liberty to record conversations to which one is lawfully a party.

Now there's another such incident in the news; the Massachusetts Lawyers Weekly reports:

[Simon Glik] will stand trial on Jan. 29 in Boston Municipal Court on charges of wiretapping, aiding an escape and disturbing the peace for allegedly using his cell phone to record the arrest of a 16-year-old juvenile in a drug case.... Officer Peter Savalis alleges that attorney Simon Glik was walking in the Boston Common at 5:30 p.m. when he used his phone's camera to videotape him and two other officers investigating a teen. "[He] reached out and placed his arm into the officer's way and held out a phone," according to Savalis' police report -â€” an accusation that Glik denies. The report then states that [Glik] walked around the officers and continued recording the scene. When one of the officers asked if he was using audio and video on the phone, Glik reportedly said: "I sure am using audio." ...

I can't speak to whether Glik got close enough to the scene that he was physically interfering with the arrest of the suspect. But it shouldn't be illegal for him to audiotape the police officers (the subject of a separate charge, of which he could be convicted even if the jury finds he didn't physically interfere with the arrest). Yet under Massachusetts law, he may well be guilty, so long as the jury concludes that at least part of the tape recording happened before the officers realized that they were being recorded. Pretty bad.

Thanks to Harvey Silverglate for the pointer.