Massachusetts Enhances the Right to Secretly Record Government Officials


They [the makers of the Constitution] conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” — Justice Louis Brandeis, 1928

The era of “Prohibition,” which lasted from 1922 until 1930, primarily is remembered for the rise of bootleggers and notorious gangsters who grew immensely wealthy from the practice of distributing alcoholic products to millions of booze-thirsty Americans. Al Capone and “Dutch Schultz” are among the more notorious of these criminals; and numerous books have been written about their exploits, along with dozens of movies extolling their escapades and those of the lawmen who eventually reined them in.

Few, if any students of that period of American history, however, will recognize the name of Roy Olmstead. Yet it was this man — the general manager of a lucrative Seattle, Washington bootlegging operation — whose name lives on in legal history even today, nearly a century after he was convicted of violating the National Prohibition Act in 1928. Roy Olmstead’s name has survived in legal lore, because it was the United States Supreme Court opinion affirming his conviction that gave birth to modern electronic surveillance law.

In an unusual twist of legal fate, however, it was a dissenting opinion in Olmstead’s case, written by renowned Associate Justice Louis Brandeis, that often is cited by legal scholars and others even today, in support of an individual’s right to privacy as against the powers of surreptitious electronic surveillance.

Communications technology has advanced phenomenally from the basic telephone by which, through a physical “wiretap,” federal agents were able to learn details of Olmstead’s illicit bootlegging operation. Advances in technology have today made it easy for anyone — law enforcement agent or nosey citizen — to surreptitiously monitor and record communications of their own as well as others. The law of electronic surveillance likewise has advanced greatly in the past 90 years.

Unfortunately for Olmstead in 1928, a majority of high-court justices rather easily — almost cavalierly — dismissed his challenge to the evidence against him obtained by a handful of agents; finding no constitutionally-protected privacy right in a person’s telephone conversations.

Today, and reflecting Justice Brandeis’ dissent in Olmstead, there are significant limitations on when and how government may surreptitiously collect electronic communications without violating the Fourth Amendment to our Constitution. There also is a body of law detailing the circumstances under which civilians are able to record communications by government officials, especially when recorded without their knowledge or consent.

Under federal law a person may lawfully record a conversation in which he or she in engaged with another person or persons, without the knowledge or consent of any other party. The majority of states (38 plus the District of Columbia) follow the federal model in this respect. While this sector of surveillance law has in recent years remained relatively stable, questions relating to the circumstances under which individuals can lawfully and surreptitiously record public officials as they perform their official duties (wherever that might be), is not so settled.

Just two months ago, for example, a federal judge in Massachusetts ruled that a person’s right to surreptitiously record a public official — whether a law enforcement officer or any other government employee — is an activity protected under the Constitution.

In an opinion sure to be widely dissected and cited, District Judge Patti Saris ruled that a 1968 Massachusetts law making it unlawful for an individual to secretly record communications of government officials (and others), violated the First Amendment to our Constitution because of that provision’s “interest in [protecting] newsgathering and information-dissemination.”

Openly recording law enforcement officers performing their duties in public has been widely considered a lawful exercise of a person’s First Amendment-protected rights, and several U.S. Courts of Appeals have expressly so held (with some limitations).

The Dec. 10 decision by Judge Saris, however, goes beyond such circumstances; offering constitutional protection to someone who choses to make a visual or oral recording of any public official’s actions, regardless of whether the official(s) are aware of being thus “surveilled.”

Although the Commonwealth of Massachusetts appears not yet to have decided whether to appeal Judge Saris’ ruling, it is more likely than not that it will become settled policy (if not law) in the months and years ahead.

Self-Educated American Contributing Editor, Bob Barr, represented Georgia’s 7th district in the U.S. House of Representatives from 1995 -2003 and as U.S. Attorney for the Northern District of Georgia from 1986-1990. He currently serves as president and CEO of the Law Enforcement Education Foundation.