By Jay Wolman
Shameless plug: I appeared on Fox 25 Boston last night discussing issues relating to privacy rights and personal use drones that take surveillance video.
Link to the article, with video, is here: http://www.myfoxboston.com/story/21202581/2013/02/14/privacy-concerns-rise-as-personal-drone-market-expands
And a companion piece I wrote: http://www.bostonbusinesslitigation.com/technology/unmanned-drones-and-the-right-to-privacy/
A nuanced point, but I believe the Massachusetts wiretapping law you cite is not based on the absence of consent, but whether the recording is done secretly. That is, the law does not prohibit recording without consent so long as the recording is done openly or with notice. (It’s the same statute used to punish people who secretly record police officers.) At any rate, it seems to me that drone-based audio recording, even as part of video recording, could run afoul of wiretapping statutes in a number of states. These statutes greatly vary in language and court interpretation in a number of states. For example, the Illinois wiretapping statute is based on two-party consent, and the Connecticut wiretapping statute is based on being present.
It is poor legislative drafting. Per the statute:
4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication;
Thus, the “person given prior authority” is a consent requirement that subsumes the secrecy issue. If you announce you are recording, by continuing to speak the subject is granting implicit consent to record. If you announce you are recording and the person says “no, I do not consent”, continued recording may be viewed as being now secretive, since the person does not know that you are continuing to record. In practice, there is no distinction.
And, I’ll give you your due: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025466
Nice work. btw, I’m in CT as well.
Thanks for the friendly link and compliment. :) I’m sending you a separate email in a bit.
I certainly agree that the statute is poorly drafted. Also, I understand your construction and I think it’s reasonable. (Lisa Skehill Maki would agree at 982-83 that your construction bears out). I don’t think the current case law supports it, though. Check out, for example, Glik v. Cunniffe, 655 F. 3d 78 (1st Cir. 2011) (“[T]he court found no probable cause supporting the wiretap charge, because the law requires a secret recording and the officers admitted that Glik had used his cell phone openly and in plain view to obtain the video and audio recording.”) (The underlying criminal case is Massachusetts v. Glik, No. 0701 CR 6687, slip op. (Boston Mun. Ct. Jan. 31, 2008), which I haven’t uploaded, but should).
This is all just a teeny-tiny quibble, though, and my comments are at best tangential. Your article is great and a really nifty read. Thanks.
And thank you. I understand the Glik distinction, but agree with Maki’s assessment of Hyde that notice=consent in practice. I appreciate your interest in the nuances; it makes the practice of law fun and challenging.