Posted by Michael Franklin

In the era of ubiquitous personal technology, it may seem that we have an unbridled right to use our smartphones to photograph or record anything and everything. We may particularly want to record the police to verify that they are serving and protecting the public and not violating individual rights. Be careful, even here in our great state of Massachusetts, the police can still lawfully charge and arrest you for recording them in certain circumstances.

Recently, a woman was charged with unlawful wiretapping by the Springfield police for recording her arrest. The Springfield Republican reported that a 24 year-old woman, Karen Dziewit, was arrested for disorderly conduct and the police discovered in her possessions a smartphone with the audio recorder activated. When she was arrested, the police claim that Ms. Dziewit had yelled that she was recording the entire incident. Subsequently, the police further charged her with violating the Massachusetts law prohibiting wiretapping. In Massachusetts, it is a misdemeanor punishable by up to two years in jail and/or a maximum $5000 fine to record any conversation without the consent of all parties. Mass. Ann. Laws ch. 272 § 99.

Interestingly, the U.S. Court of Appeals for the First Circuit in 2011 held that a “citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.” Glik v. Cunniffe, 655 F.3d 78 (2011). In that case, Simon Glik, an attorney, had sued Boston and city police officers for violating his civil rights when he was arrested for using his cell phone to openly record the officers take a suspect into custody on the Boston Common. After the Court of Appeals ruled that the First Amendment protects the right to record the police in a public place, Boston settled the case for $170,000 and implemented a program to re-train its police force to prevent such false arrests in the future.

So is Ms. Dziewit on her way to recovering thousands of dollars in damages for the violation of her rights? Not necessarily, because there is a primary and critical difference between the two cases. Ms. Dziewit is accused of secretly recording the police by concealing her smartphone while the audio recorder was activated. In the Glik case, the court noted that while both the First and Fourth Amendments protect the act of openly recording the police, the wiretap statute does prohibit secret audio recordings.

The moral of this cautionary tale is that it is always good to know the extent of your constitutional rights. When it comes to recording the police, you can do so openly in a public setting. However, any covert recordings are still illegal in Massachusetts. When in doubt of whether any of your potential conduct is criminal, you should seek the advice of legal counsel.