A FRIENDLY PSA REGARDING VIDEO/AUDIO RECORDINGS
by Adrienne Catherine H. Beauregard-Rheaume
It seems as though every other day the media is inundated with coverage of a new instance of a civilian exposing police misconduct via recording taken by the civilian. In most instances, the officers under scrutiny appear to be unaware that their acts are being recorded.
I bet you didn’t know that, in Massachusetts, that civilian could be prosecuted for a crime for simply making that recording.
Massachusetts has a law that prohibits the secret recording of another’s oral communications without that other person’s permission. In fact, it criminalizes that exact behavior. So, while you can lawfully tape the person’s actions, you cannot have any sound recording of his oral communications.
Anyone familiar with Massachusetts laws, politicians, and residents might think this a total departure from the Commonwealth’s liberal tendencies. The background of the statute explains this otherwise bizarre outcome. Massachusetts is really into privacy for all of its citizens, and the law was passed with a concern for the serious threat to privacy that the secret electronic recording of its citizens would pose. And no, there is no carve out – at least in the plain language of the law – for instances of citizens recording police officers, even if the police officers are acting in their official duties and being alleged of misconduct (except in some very particular circumstances). So yes, you get it – all of these citizens who have exposed the heinous actions of a few members of the police force could have been prosecuted if they had made those recordings in Massachusetts.
So how does this impact you? First, the obvious. If you are witnessing something happening that you think you should record, whether it is for your sake or someone else’s, simply notify the people being recorded that you are recording them. Once someone tells you that you don’t have his permission, you’re out of luck. On the flip side, if you are made aware that you are being recorded, you have the right to say that you do not consent, and you are afforded the right to not be recorded.
One way that this plays out for me personally is on recorded calls with companies – credit card companies, banks, cable, etc. We have all heard that “for quality assurances this conversation is being recorded” malarkey message in the beginning before you get connected with a human. Newsflash, it’s not usually so this company can shape up its customer service. It’s so it can say that it has your consent to record what goes down should you ever make an issue out of what was discussed in the future. The benefit of the Massachusetts law in this circumstance is that you can refuse. When I hear that message, I typically start my conversation with said human by saying “I don’t consent to this being recorded…” and then move on. I’ve never had said human acknowledge my refusal, nevermind deny me what is sure to be a scintillating 5 minutes of figuring out why I got charged twice for renting Spaceballs last month.
There can also be a benefit to recording any important conversations you have if you anticipate the possibility of litigation. If so, it is crucial that you speak with an attorney before you have your words forever memorialized in writing or in a recording. As civil litigators, the attorneys here at Beauregard, Burke & Franco are well-versed in helping people strategize to resolve potential lawsuits short of actual litigation, which can be a huge monetary and psychological relief whether you are a potential plaintiff or defendant.