Recording

Photo illustration

(Dan Warner/Masslive.com)

Part two of a series exploring the nuances of Massachusetts wiretap law. Part one explains the wiretap statute in detail.

SPRINGFIELD – Michael Hyde was 28 years old when the traffic stop made him a household name in wiretap law. He had long hair and a loud sports car. He was in a band.

Hyde was driving his white Porsche on Oct. 28, 1998, in Abington with his friend Daniel Hartesty in the passenger seat. An Abington police officer pulled him over around 10:30 p.m. because of the car’s loud exhaust and an unlit license plate.

Three more officers arrived. Hyde and Hartesty were ordered out of the car and Hartesty was frisked. An officer reached into the car to search a plastic bag on the floor. It was just full of CDs.

Things unraveled quickly.

Hyde said the stop was “a bunch of bulls---.” One officer called him an a--hole. An officer asked if he had any “blow.” Hyde was riled up. The stop had gone “so sour,” an officer later testified.

Hyde and Hartesty were allowed to leave and weren’t cited for anything. The whole encounter took about 15-20 minutes, and it could have ended there.

Fifteen years later, Hyde still thinks of the stop and the trouble that followed.

Hyde had a tape recorder in his car that night, and when he was pulled over, he hit record. He didn't tell officers he was recording and the recorder wasn't conspicuous. Right then, he had committed an unlawful wiretap under Massachusetts statute.

The next week, he brought the recording into the Abington police station to complain. He was charged with a violation of wiretap statute — a charge that can carry up to three years in prison.

He was convicted and his appeal went to the Supreme Judicial Court of Massachusetts. The 2001 decision upheld his conviction and made it clear for future cases: secret recording by civilians — no matter the place or the person recorded — is illegal in Massachusetts.

Hyde wasn’t sent to prison. He received two years probation for the wiretap charge.

He’s in his forties now with a wife and a child. He wasn’t an activist in 1998 and had no interest in surveillance or wiretapping, but now he watches wiretap cases closely.

“Once it happens to you,” Hyde said, “then you’re involved.”

He said police use the statute to charge people who cross them, but do not charge people in other situations.

“The wiretap statute is being used as a weapon to protect certain people,” Hyde said.

Carl Williams of the ACLU of Massachusetts said wiretap law and recording police actions draws anger from all sides.

“The right, the left, the center — everyone gets pissed about this,” he said.

Williams said it’s the ACLU’s position that recording police in the course of their public duties is constitutionally protected behavior. Williams hopes that another challenge to the law will turn out differently.

The recent case of a Chicopee woman charged with unlawful wiretap for secretly recording her arrest in Springfield could force the courts to reexamine the statute. If it doesn't, Williams said, another case will soon come along.

“It seems that (recordings are) happening more and more, and I think that folks are feeling more empowered, which is a great thing,” Williams said.

Under current law — and as described in the Hyde ruling — secret audio recording is a violation of wiretap statute. Ten years after the Hyde ruling, in Glik v. Cunniffe, the First Circuit Court of Appeals ruled that citizens have the right to record police, as long as they do so openly.

The Glik ruling said the constitutional right to gather information about public officials "aids in the uncovering of abuses" and "also may have a salutary effect on the function of government more generally."

The wiretap statute specifically targets audio recording, but as most video includes audio the two are often lumped together. Recorded scenes can be key pieces of evidence in abuse cases, such as the Rodney King case and the 2009 Springfield case of Melvin Jones III.

Tyrisha Greene videotaped a Springfield police officer beating Jones in the head and legs with a flashlight during a traffic stop. Jones was left with partial vision loss in one eye, broken facial bones and head injuries.

One of the patrolmen involved in the incident applied for an unlawful wiretapping criminal complaint against Greene, but she was never charged.

Former patrolman Jeffrey M. Asher was sentenced in April 2012 to 18 months in jail for assault and battery with a dangerous weapon and assault and battery.

“If there wasn’t a video of this, I highly doubt we’d even be talking about it,” said public defender Jared Olanoff at the time.

Complaints about police — which range from serious accusations of physical abuse to paranoid and bizarre claims and insults — go through Springfield’s Community Police Hearing Board.

In 2012, the CPHB received 86 complaints. Only seven were sustained. In 2013, eight of 92 complaints were sustained. Thirteen were classified as “unfounded” and 51 were “exonerated.”

Sustained complaints were “supported by sufficient evidence,” the 2012/2013 CPHB report said.

Many of the complaints that were not sustained or in which police were exonerated resulted from witness non-cooperation, according to the report. The report said witnesses “may fear retribution or they have a sense that ‘nothing will be done.’”

George Bourguignon, chair of the CPHB, said many complainants simply don’t follow through on their complaints to the point of providing evidence or testimony.

In another case earlier this year, George Thompson of Fall River was arrested for openly recording Fall River Police Officer Thomas Barboza who he said was cursing and shouting on the phone on the sidewalk.

"I was reading a news article on my phone when I heard a cop walking on the sidewalk saying 'f-this, f-that.' There was an elderly woman walking by him who was visibly upset by his language so I asked him to chill it." Thompson said in a recent interview. "Then he said 'why don't I shut the f--- up.'"

As the interaction continued, Thompson said he closed the web browser on his iPhone and opened the camera app, hitting record on the video option. As they continued speaking, Thompson said he held his phone up in plain view.

"When he realized what I was doing he became upset," Thompson said. "He came running up the (porch) stairs, telling me to stop recording, calling me a 'f---ing welfare bum."

Thompson was arrested that day on grounds that he violated Massachusetts' wiretap statute. Two days later, when Thompson returned to the police station to retrieve his phone, he said it had been reset to factory settings and everything on it - including the video of his interaction with the officer - was erased.

Though the charge was dropped in April, Thompson hopes others can learn from his interaction and both civilians and law enforcement will better understand the law.

As more Massachusetts residents - like Thompson - consider smartphones a personal recording device, Williams said police response has been mixed. He said some officers have deleted files, while others have softened their response to seeing cameras pointed at them during arrests.

The Boston Police Department even created a training video telling officers what citizens are allowed to record under the statute. The CPHB said in its report that officers should be trained to respect citizens’ recording rights.

But unlawful wiretap charges aren’t limited to recordings of police.

Earlier this year, a 15-year-old student in Pennsylvania — which also has an all-party consent rule — recorded alleged bullying in a classroom.

After bringing the recording to the attention of school administration, Christian Stanfield was told to erase the recording and was then charged with wiretapping and disorderly conduct, as reported by WTAE.

The charge was soon dropped.

In Salem three years ago, two students were accused of making secret audio recordings at school, at least one of which was meant to combat bullying.

The students were not charged, but then-superintendent William Cameron warned that police could be involved if such recordings continued, according to a story on Wickedlocal.com.

These and the police cases show that the statute isn’t being implemented the way it should, Hyde said.

“(Government is) taking more and more rights away from us, while ensnarling themselves further into privacy issues,” Hyde said.

The law is out of balance, he said, and it restricts how citizens can protect themselves while it shields police.

“Drunk driving isn’t a felony,” Hyde said. “Assault and battery isn’t a felony. But recording the cops is a felony?”

Michelle Williams contributed to this report.