Consumer Advocate Legal Update : Class Action Lawyers & Attorneys : Khorrami Pollard & Abir Law Firm : Mass Torts, Products Liability

All-party consent statutes have been enacted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. In contrast to the anti-eavesdropping and anti-wiretapping statutes of the federal government and the other 38 states, the all-party consent statutes require the recording party to obtain consent from all parties to the recorded confidential conversation or face criminal charges. Of those states, Massachusetts seems to be the strictest and most active state in pursuing criminal charges against members of the public filming police officers in public, although there have been recent arrests for violating all-party consent statutes in Pennsylvania, Washington, and New Hampshire.

In Commonwealth v. Hyde, 434 Mass. 594, 601 (2001), the Supreme Judicial Court of Massachusetts interpreted its all-party consent statute broadly to not require an expectation of privacy, in contrast to federal law and other all-party consent states, such as Washington and California. The Hyde court affirmed the conviction of the defendant, who had surreptitiously recorded his conversation with a police officer at a police stop and subsequently attempted to file a complaint using the tape as evidence. In Chief Justice Marshall’s dissent, he noted that this decision will threaten the press’s First Amendment rights and constitutional role as watchdog. The harsh interpretation by the Supreme Judicial Court of Massachusetts caused Massachusetts state legislators to propose several bills, which would carve out exceptions for recording conversations with police officers, but none have passed thus far.

All-party consent statutes are often applied too broadly by extending protection to conversations that have very low expectations of privacy. California courts have identified some of these situations, such as while under valid arrest in a police car, in jail, at a non-confidential business meeting, when expressing an intent to violate the law, and at a meeting in a busy restaurant. With the increase in the availability of consumer electronics, including cameras on most new cell phones, and the incredible ease of global distribution of recordings, privacy expectations are much lower than they were when anti-eavesdropping and anti-wiretapping laws were first introduced during the 1960s. Many states will not extend privacy protection to situations with low expectations of privacy, although some are inconsistent in applying this to the recording of police officers.

Another bar to criminal liability for recording police officers in public is the newsworthiness test, which has been held to be a full defense against other privacy-based offenses. The California Supreme Court recognizes that truthful publication is shielded from liability if “(1) it is newsworthy and (2) it does not reveal facts so offensive as to shock the community notions of decency.” Briscoe v. Reader’s Digest Association, Inc., 4 Cal. 3d 529, 541 (1971). California courts use the following factors to determine newsworthiness: “(a) the social value of the facts published; (b) the depth of the article’s intrusion into ostensibly private affairs; and (c) the extent to which the individual voluntarily acceded to a position of public notoriety.” Id. As noted by Chief Justice Marshal, the press has a constitutional duty to act as a watchdog of the police, so recordings of police officers have high social value. Police activities in public are not private, so there is no intrusion into private affairs. Police officers are constantly observed by and interact with the public, so their public notoriety is voluntary. Thus, police activities in public are newsworthy. If police activities shock the community notions of decency, these activities should probably be halted. Any state with a similar newsworthiness exception should not find public recordings of police officers to be criminal offenses.

Allowing the public to record police officers protects both the public and police. It is in the interests of a just democratic society to hold police responsible for their abuses and to allow citizen oversight of police officers. The public is in the best position to protect their own rights through publication or political, administrative, or judicial methods. Additionally, police officers are protected from false claims of abuse if they are regularly recorded in public. Filming in other contexts can also yield a much wider and reliable source of information to investigate and stop crime. Recognizing this potential benefit, California already has exceptions to its anti-wiretapping laws for recording crimes of extortion, kidnapping, bribery, threats of violence against the person recording, annoying or harassing telephone calls, and domestic violence. See Cal. Penal Code § 633, 633.5. Police officers and the public would best be served by allowing citizen recording of police officers in public.

About Greg Cragg

Greg is entering his fourth year as an evening student at Loyola Law School of Los Angeles. As a law clerk for KP&A, his work entails assisting attorneys and communicating with clients involved in civil rights suits, consumer fraud cases, and wage and hour class actions. Greg has worked on many of the firm's largest cases and is dedicated to providing the highest level of legal service to our clients and co-counsels.