By Kevin Heade

Big Brother is watching you. Chances are that everyday you are recorded without consent in public. It could be a public transportation surveillance camera. Maybe it happens while driving through an intersection with photo-radar. Video-recording has become so ubiquitous in our technology-obsessed culture that most people do not hold any expectation of privacy while in public.

But what happens when the tables are turned? What happens when the people record the police in public?

Increasingly, States are answering this question by prosecuting people under existing wiretapping laws for recording official police business.

Consider the case of Michael Hyde, who was stopped by an Abington, Massachusetts police officer for a loud exhaust and an unlit rear license plate.[1] After receiving a verbal warning, Mr. Hyde filed a harassment complaint against the Abington police department.[2] Hyde turned over copies of a tape that he had secretly recorded to substantiate his claim.[3] He was subsequently charged and convicted on four counts of violating Massachusetts’ state wiretapping law.[4]

Hyde was the first person charged and convicted of violating wiretapping laws by recording a police officer engaged in public duties.[5] He unsuccessfully appealed his conviction to the Massachusetts Supreme Court and also sought relief in U.S. District Court and the First Circuit Court of Appeals.[6]

Since Mr. Hyde’s conviction, Massachusetts and other states have been using this novel reading of state wiretapping laws to prosecute citizens who attempt to use recording devices to document police misconduct.[7]

In the Phoenix, Arizona area, Legal Observers of the National Lawyers Guild (NLG) were arrested by Maricopa County Sherriff Joe Arpaio while documenting anti-SB1070 protests.[8] Among those arrested included Roxana Orell, an executive officer of the NLG, who was video recording the action.[9] With the passage of SB1070, Phoenix Copwatch and NLG Legal Observers had teamed up to observe the ensuing protests of early summer 2010.[10] Despite harassing those who record his racial profiling escapades, Sheriff Arpaio has previously recognized the rights of observers to film the police in public.[11] Who knows how “America’s Toughest Sheriff” would treat civil rights videographers if he thought there was a chance to bust them under wiretapping laws.

With Michael Hyde’s conviction, Massachusetts has demonstrated that in the laboratory of federalism, one rotten experiment can contaminate the whole lab. As more states cover up the stench of police misconduct by preventing the public from recording abuses, we must assert our First Amendment rights[12] by ensuring that the misreading of wiretapping statutes does not go unchallenged.[13] The police should not have any expectation of privacy while working our streets. Much is at stake. The public must have a tool to ensure their safety. The police have guns; we have cameras. These are our streets, our laws, our officers of the “peace.” We have a right to record the police!

[1] Commonwealth v. Hyde , 750 N.E.2d 963, 964 (Mass. 2001).

[2] Id. at 965.

[3] Id.

[4] Id.; Mass. Gen. Laws ch. 272, § 99(c)(1) (1999) (“Except as otherwise specifically provided in this section any person who—willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined . . . or imprisoned . . .).

[5] Hyde, 750 N.E.2d at 974 (Marshall, C.J., dissenting).

[6] Id.; Hyde v. Mass., No. Civ.A. 04-12429RWZ, 2006 WL 753247 (D. Mass. March 23, 2006); Hyde v. Mass., 219 Fed.Appx. 20, 2007 WL 866973 (1st Cir. March 23, 2007).

[7] See Wendy McElroy, Are Cameras the New Guns?, Gizmodo, Jun. 10, 2010, http://gizmodo.com/5553765/are-cameras-the-new-guns.; Commonwealth v. Manzell, 864 N.E.2d 556 (Mass. App. Ct. 2007) (where evidence of a mere attempt to “secretly” record the Transit Authority was enough to convict); Memorandum of Law in Support of Motion to Dismiss, State v. Drew, 10 CR 0004601 Sept. 15, 2010, http://www.c-drew.com/blog/free-speech-artists-movement/motion-to-dismiss-drew-final.pdf,) (where individual who secretly recorded police harassment of street vendors was charged); State v. Graber, 12k100000647 (Md. Hartford Cir. Ct. April 27, 2010) (filed) (an incident where a camera embedded in a motorcyclist’s helmet recorded misconduct arising out of speeding violation. The motorcyclist was charged with violating state wiretapping laws after attempts to use the video to allege police misconduct.).

[8] The arrests were not for violating wiretapping laws, but for “obstructing a highway and failure to obey a lawful order. (Paige Cram, NLG Observers Targeted by Police in Arizona, Common Dreams, July 30, 2010, available at http://www.commondreams.org/newswire/2010/07/30-0).

[9] Id.

[10] “Phoenix Copwatch is a grassroots volunteer organization that works to end police brutality in the Phoenix, Arizona area. We believe that one of the best ways to prevent police abuse is by directly observing the cops in action.” (retrieved on Sept. 15, 2010) Phoenix Copwatch, http://www.phoenixcopwatch.org.

[11] Stephen Lemons, Joe Arpaio’s Deputies Harass Activists with Cameras, but Arpaio Acknowledged Observers’ Right to Film in 2006, The Phoenix New Times, Sept.18, 2009, http://blogs.phoenixnewtimes.com/bastard/2009/09/joe_arpaios_goons_threaten_act.php.

[12] See Howard Wassman, Orwell’s Vision: Video and the Future of Civil Rights Enforcement, 68 Md. L Rev. 600, 652 (2009) (discusses case law and theory supporting the use of the First Amendment to secure a positive right to record the police).

[13] See Id. (discusses several cases where the defendants prevailed on wiretapping charges for recording the police).