by Ryan E. Ferch
The proliferation of electronic recording devices and media sharing platforms has drastically changed our daily interactions and views about privacy. Perhaps nowhere is this effect more apparent than in civilians’ recordings of public officials, in particular, law enforcement officers. The publication of these recordings raises profound issues about racial and ethnic disparities and public accountability, the effectiveness of police training and community policing strategies, the risk of violence law enforcement officers face in the performance of their duties, and society’s treatment of the mentally ill, among others.
Massachusetts courts and the First Circuit have grappled with the nexus between electronic recordings and rights protected by the First Amendment since the enactment of the Massachusetts wiretap statute, G.L. c. 272, § 99 (“Section 99”), in 1968. But until Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020), no court had addressed squarely whether secret recordings are protected by the First Amendment. In Project Veritas, the First Circuit concluded that Section 99 violated the First Amendment in one specific circumstance: as applied to the statute’s criminalization of “secret, nonconsensual audio recording of police officers discharging their official duties in public space.” Project Veritas, 982 F.3d at 844.
Less than six months after Project Veritas, the Supreme Judicial Court (“SJC”) in Curtatone v. Barstool Sports, Inc., No. SJC-13027, 2021 WL 2408015 (June 14, 2021), also addressed Section 99 in the context of a recording of a public official. Although Curtatone did not delve into the constitutionality of the statute, the SJC held that a recording made openly and with the speaker’s knowledge was not a “secret recording” even though it was obtained by false pretenses.
Prior Decisions on the First Amendment and What Is “Secret”
Section 99 provides in relevant part that it is a crime to intentionally, secretly record, or attempt to record without a warrant—i.e., “to intercept”—a wire or oral communication without permission of all participants. G.L. c. 272, §99 B(4). Thus, prior to Project Veritas, Section 99 was interpreted to criminalize all non-consensual, surreptitious recordings regardless of any reasonable expectation of privacy by the recorded party. See Commonwealth v. Hyde, 434 Mass. 594, 599-600 (2001) (Section 99 is “intended … strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge”). Foreshadowing Project Veritas, however, the dissent in Hyde cautioned that such a reading of Section 99 “threaten[ed] the ability of the press—print and electronic—to perform its constitutional role of watchdog.” Id. at 613 (Marshall, C.J., dissenting).
The requirement in Section 99 that all parties to a recorded communication must consent is colloquially referred to as “two-party consent.” Unlike most states’ wiretap laws, Section 99 does not provide an exception to the consent requirement for parties who have no reasonable expectation of privacy. See Project Veritas, 982 F.3d at 817, 840. Although nonconsensual audio recordings without a warrant generally violate Section 99, the SJC has also held that “actual knowledge of the recording” by the party being recorded is sufficient, and affirmative authorization or express consent is not required to avoid liability under the statute, Commonwealth v. Jackson, 370 Mass. 502, 507 (1976), even when the party being recorded is a police officer, Hyde, 434 Mass. at 605 (citing Jackson, 370 Mass. at 507).
No prior First Circuit decision—nor any other federal case before Project Veritas—addressed directly whether First Amendment protections extended to secret recordings of public officials, including law enforcement. Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011), for example, rose out of an arrest for openly filming police officers arresting an individual on the Boston Common. There, the First Circuit defined the scope of recording activity that triggers First Amendment protection to include the “right to film government officials, including law enforcement officers, in the discharge of their duties in a public space.” Id. Similarly, Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), addressing the New Hampshire wiretap statute, extended the reasoning of Glik and held that the First Amendment protects the open recording of a police officer conducting a traffic stop. Id. at 2-3, 7. Although limited to open recordings, in Project Veritas the First Circuit observed that these decisions “suppl[y] strong support for the understanding [that First Amendment-protected recording of police] encompass[es] recording even when it is conducted ‘secretly,’ at least as Section 99 uses that term.” Project Veritas, 982 F.3d at 832.
Project Veritas: First Amendment Protects Secret Recording of Police Officers Performing Their Duties in Public
Project Veritas consolidated the appeals of two groups of plaintiffs. The plaintiffs in one appeal (the “Martin plaintiffs”) are civil rights activists who openly record police officers performing their duties in public and who sought declaratory and injunctive relief in their First Amendment challenge to a portion of Section 99. The First Circuit considered their challenge to Section 99 “insofar as it applies to bar the secret, nonconsensual audio recording of police officers discharging their official duties in public places.” Project Veritas, 982 F.3d at 826. The plaintiff of the second appeal, Project Veritas—a national media organization “dedicated to undercover investigative journalism”—challenged the constitutionality of Section 99 on several broader First Amendment grounds: (1) as facially overbroad in its entirety; (2) as applied to the prohibition against the “secret, nonconsensual audio recording of any person who does not have a reasonable expectation of privacy in what is recorded”; and (3) as applied to the prohibition against the “secret, nonconsensual audio recording of all government officials discharging their official duties in public spaces.” Id. at 822-24, 840-42.
Applying intermediate scrutiny, the First Circuit addressed the merits of the Martin plaintiffs’ claim and affirmed that Section 99 was unconstitutional in a narrow and specific set of circumstances: insofar as it imposed an outright ban on “secret recordings” made in “public spaces,” of police officers, during the discharge of their “official functions.” Id. at 827-28. The court determined Section 99 was not narrowly tailored enough to further the government’s legitimate interest in preventing interference with the officers’ ability to do their jobs and in protecting the privacy of citizens. Id. at 836. Instead, Section 99 impermissibly prohibited all secret recording, “notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public’s ability to hold them to account for their wrongdoing.” Id. at 835-37.
In balancing the government’s interests, the court recognized that police officers surrender some of their privacy when performing their official functions and then delved into the privacy interests of the variety of citizens who interact with the police—which can include anyone from confidential informants to rape victims, minor victims, and witnesses. Id. at 838-39. As the court recognized, there is inherent tension here—citizens have greater privacy interests at stake than uniformed officers, and notice of recording may help them avoid shame or embarrassment. Id. at 839. Nonetheless, the First Circuit concluded that Section 99’s “blunderbuss prohibitory approach” was too broad to serve the important interests implicated in the Martin plaintiffs’ circumstances, noting that police officers presumably are already careful when having sensitive conversations within earshot of others, and that individuals’ privacy interests are “hardly at their zenith” when speaking to police officers in public. Id. at 837-39.
Justiciability of Pre-Enforcement First Amendment Challenges
The discussion of justiciability in Project Veritas—namely whether the plaintiffs’ pre-enforcement First Amendment claims were ripe—is thorough and a useful guide for future pre-enforcement cases. To determine whether the plaintiffs’ various claims were ripe, the First Circuit applied the two-part test from Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), and evaluated: (i) the fitness of the issue for judicial review (in terms of finality, definiteness, and sufficient development of facts) and (ii) the hardship to the parties of withholding adjudication (in terms of creating a direct and immediate dilemma). Project Veritas, 982 F.3d at 825-26. Characterizing the Martin plaintiffs’ single claim as presenting a narrow facial challenge to Section 99 as applied to the secret, nonconsensual audio recording of police officers discharging their official duties in public, the First Circuit concluded the claim presented a purely legal challenge that met Article III’s ripeness demands. Id. at 825-30.
In contrast, Project Veritas’s as-applied challenges—that Section 99 violates the First Amendment by prohibiting (i) the secret recording of all individuals who have no reasonable expectation of privacy and (ii) the nonconsensual recording of all government officials in their discharge of duties in public space—evidenced “serious ripeness concerns.” Id. at 842-44. Specifically, the court concluded that the disparity between Project Veritas’s proposed secret newsgathering actions and the scope of relief sought was too great to present a well-defined, live, justiciable, pre-enforcement controversy. Id. at 842-43. Importantly, these rulings significantly narrowed the ultimate decision by vacating the lower court’s ruling on the merits that would have allowed the secret recording of any “government official” performing official duties in a public space. Id. at 824, 843-44. Also, the First Circuit affirmed the rejection of Project Veritas’s facial overbreadth claim, which would have invalidated Section 99 in its entirety, noting that Project Veritas “fails to show, as it must, that the unconstitutional applications are ‘substantial’ relative to the extensive range of applications [of Section 99 not challenged as unconstitutional].” Id. at 841. See also id. at 844 (emphasizing “the substantial protection for privacy that [Section 99] provides in contexts far removed from those that concern the need to hold public officials accountable”).
Project Veritas has sought certiorari review of the First Circuit’s denial of its facial overbreadth challenge and determination of insufficient ripeness as to its as-applied claims. The treatment of this petition will be interesting, as the Supreme Court has never addressed the prohibitions on open or secret recording of law enforcement. See id. at 835.
Curtatone: What Is “Secret Recording” that Constitutes Prohibited “Interception”?
Although Curtatone did not address the constitutionality of Section 99 like Project Veritas, it did involve an actual, discrete recording of a public official. The SJC held that a recording made openly and with consent—even if induced under false pretenses of who was recording the communication—is not a “secret recording” so as to give rise to a cognizable claim of unlawful “interception” within the meaning of Section 99.
In Curtatone, an employee of Barstool Sports, using his real name and affiliation, requested an interview with Joseph Curtatone, the mayor of Somerville. His request was unsuccessful. He then contacted a Somerville official identifying himself as a specific reporter for the Boston Globe and asked to interview Mr. Curtatone. The mayor agreed to that request, believing it to be with the Boston Globe reporter. During the interview, the Barstool Sports employee continuously maintained he was the Boston Globe reporter. Critically, at the beginning of the interview the mayor consented to it being recorded. Barstool Sports later posted the interview on its blog. Slip op. at 4.
The SJC concluded that to violate Section 99, the recording itself that must be “(1) secretly made and (2) without prior authority by all parties” to constitute a prohibited “interception.” Id. at 6. That is, “it is the act of hearing or recording itself that must be concealed to fall within the prohibition against ‘interception’ within [Section 99],” and the “identity of the party recording . . . or, indeed, the truthfulness with which that identity was asserted is irrelevant.” Id. at 8. In short, where the [act of] recording but not the [true] identity of the recorder was known and agreed upon” by the speaker, the recording was not made “secretly.” Id. at 10.
Thus, Curtatone further narrowed the reach of Section 99 by rejecting the mayor’s argument that the recording at issue was secret and violated Section 99 because (a) both parties must provide “actual consent” for a lawful recording, and legally effective consent was not possible to provide where he did not know the true identity of the interviewer; and (b) the Barstool Sports employee secretly heard and recorded the conversation or illegally intercepted the communication because the mayor was falsely led to believe the employee was someone else. Id. at 5. Notably, in rejecting the mayor’s assertion that his privacy rights were violated, the SJC found it “relevant to note that the plaintiff was a mayor of a city with more than 80,000 people, [who] believed he was speaking on the record to a newspaper reporter,” notwithstanding that Section 99 provides no exemption for an individual with no expectation of privacy. Id. at 10.
Project Veritas and Curtatone raise several questions. For one, how will police interactions with private citizens in public spaces change, if at all, given the new ability to secretly record? Also, given the recognition that citizens retain their privacy interests, will there be efforts to protect the rights of informants, witnesses, and victims of crime? Also, will there be another attempt to expand the scope of permissible recording to other types of government officials performing their duties in public spaces? On this point, the First Circuit recognized that the “First Amendment analysis might be appreciably affected by the type of government official who would be recorded”—an elected official, a school teacher, or a bus driver. Project Veritas, 982 F.3d at 843. Similarly, the SJC’s analysis anticipates that the identity of the public official is critically relevant to determining the applicable privacy interest. And finally, over fifty years since enactment of Section 99, will the Massachusetts Legislature reexamine the wiretap statute in light of the rapid developments in technology and recent court rulings?
 In addition to criminal penalties, Section 99 provides a civil cause of action for individuals whose “communications were intercepted, disclosed or used except as permitted or authorized” by Section 99, or whose privacy was so violated. G.L. c. 272, § 99 Q.
 “Intermediate scrutiny” requires the determination of whether the law is “narrowly tailored to serve a significant government interest” and “must leave open ample alternative channels for communication,” but need not be the “least restrictive means of achieving the government’s interests.” Project Veritas, 982 F.3d at 834-36. This procedural issue had not been addressed squarely before in similar First Amendment cases and the First Circuit’s detailed discussion is worth careful review.
Ryan E. Ferch is currently Senior Counsel at the Massachusetts Bay Transportation Authority. Until 2017, as an Assistant Attorney General, he represented the defendants in the Project Veritas and Martin cases.