Massachusetts Law Review

Criminal Law: Electronic Surveillance - General Laws chapter 272, section 99

Commonwealth v. Hyde, 434 Mass. 594 (2001) If only the defendant hadn't been driving a Porsche. But more on the Commonwealth's "Porsche rule" presently.

The subject of countless news reports and editorials,1 Commonwealth v. Hyde2 is an astonishing opinion. Read broadly, but fairly, the opinion states that chapter 272, section 99 of Massachusetts General Laws, Massachusetts electronic surveillance statute, criminalizes the use of an ordinary tape recorder to capture the voice of any unknowing person, regardless of the setting in which the recording is made.3 That is to say, the majority in Hyde concludes that the recording proscription of Section 99 applies even to situations in which a speaker evinces no expectation of privacy and, indeed, even where it is obvious that a speaker intends his words for public consumption.4 Does this mean that a student who records a lecture without the express permission of his teacher could be indicted under section 99? Probably. Can television or radio news crews record public events without running afoul of the law? Maybe not. Is it likely the legislature ever intended section 99 to have these effects? Without a doubt, no. Will the opinion in Hyde endure? Unlikely.
First the facts: On Oct. 26 1998, Abington police stopped the defendant because his Porsche sports car had a broken tail light (a venerable staple of motor vehicle search cases) and an excessively loud exhaust system.5 During the twenty-minute encounter that ensued, a large number of police officers gathered, the defendant's passenger was searched, and items were removed from inside the car and inspected.6 The defendant loudly and colorfully accused police of stopping him because of his appearance (the defendant had long hair), and police loudly and colorfully refuted those allegations.7 In the end, no citation was issued, the defendant received a verbal warning for the alleged equipment violations, and all dispersed.8 There the story likely would have ended had the defendant not secretly recorded the entire encounter on a miniature audiotape recorder.9 A few days later, the defendant visited the Abington police station to lodge a complaint against the officers involved in the stop, providing a copy of the tape as evidence of his mistreatment.10 Two things immediately happened: an internal investigation promptly cleared police of any wrongdoing, and the police applied for a criminal complaint against the defendant for violation of Chapter 272, section 99.11 A clerk magistrate initially refused to issue the complaint, but at a subsequent show cause hearing before a district court judge, the complaint issued.12 At a jury trial, the defendant was convicted and sentenced on four counts of violating Section 99 (each count related to a different police officer).13 On direct appellate review before the SJC, the defendant claimed, as he did in a motion to dismiss the complaints before the trial judge, that chapter 272, section 99 of Massachusetts General Laws does not apply to public speech, but was intended only to shield private communications from various forms of electronic recording or interception.14 Ancillary to this main argument, the defendant contended that even if some forms of public speech were protected by Section 99, the public actions of police in the performance of their duties should be excepted on public policy grounds.15 The court rejected both these claims, based primarily on its reading of the plain language of section 99 and, to a lesser degree, on selected portions of the legislative history.
On its face, Section 99 criminalizes the "interception," through the use of an electronic device, of any "oral communication." The statute defines "interception" to mean "to secretly hear, [or] secretly record;"16 "oral communication" is defined as "speech, except such speech as is transmitted over the public airwaves by radio or other similar device."17 Based on these broad definitions, the majority arrived at the very surprising conclusion that Section 99 is not a privacy protection statute at all, but simply a strict prohibition on the secret use of electronic surveillance equipment - tape recorders, telephone wire tapping devices, parabolic microphones, etc. - anywhere and for any reason - even in situations where an intercepted communication, as here, was made in public.
This outcome was unexpected since the preamble to chapter 272, Section 99 of Massachusetts General Laws flatly states that the statute was enacted specifically to protect privacy interests:18 "[T]he uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited."19 Further, as cited at length by the minority, the legislative history of Section 99 underscores the notion that the statute was enacted chiefly in response to privacy concerns; specifically to "the newly discovered practice of private telephone companies' eavesdropping on the conversations of its private customers; and [the fact that] new technology has made 'eavesdropping devices' or 'bugs,' such as subminiature transmitters, 'readily available' to 'private investigators' and 'private parties.'"20 Finally, the emphasis on the primacy of privacy interests is reflected in the fact that the statute is formally titled (and codified) as "Eavesdropping, Wire Tapping, and Other Interception of Communications." "Eavesdropping" is defined as "listen[ing] secretly to a private conversations [of others]" (emphasis added).21 Also instructive is the fact that 18 U.S.C. § 2510, the federal wiretap statute upon which § 99 is based, consistently has been interpreted as a privacy statute. Indeed, just last year in Bartnicki v. Vopper,22 the Supreme Court observed that § 2510 was enacted as a direct response to the decision in Katz v. United States,23 which defined the limits of privacy protection under the Fourth Amendment in the specific context of wire communications. Reacting to that opinion, the Supreme Court in Bartnicki stated, Congress enacted 18 U.S.C. § 2510 "to protect effectively the privacy of wire and oral communications."24 Similarly, in Dalia v. United States,25 an early comprehensive analysis of § 2510, the Supreme Court stated that "electronic surveillance can be a threat to the 'cherished privacy of law-abiding citizens' unless it is subjected to the careful supervision prescribed by Title III [18 U.S.C. 2510]."26 The similarity between the state and federal laws has been emphasized in a number of Massachusetts decisions.27 As the SJC observed in Commonwealth v. Vitello,28 "[Section 99] in major portion matches section for section the provisions of [18 U.S.C. § 2510]. Admittedly, the phraseology of [the Massachusetts] statute is not word for word that of the Federal act. However, in substance the requirements of the Massachusetts statute are the same as those of [18 U.S.C. §§ 2510-2520], as the legislative history of [the federal law] shows that they should be." Unsurprisingly, federal decisions construing § 2510 have been relied upon frequently by Massachusetts courts in interpreting cognate provisions of Section 99.29 For example, in Commonwealth v. Gordon, following the federal model, the SJC held that "the legislative focus in Section 99 was on the protection of privacy rights . . . ."30 At issue in that case was the admissibility of secret recordings of police booking procedures. Finding that no privacy interest was violated by the recording, the SJC concluded that the exclusionary provisions of Section 99 were inapplicable.31 Likewise, in Commonwealth v. Look,32 the SJC held that the secret interception of statements made by the defendant during booking did not violate either Section 99 or 18 U.S.C. § 2510. As in Gordon, the court in Look reached its decision on the basis of privacy considerations: "a person who is talking to a police officer after being told that anything he says may be used against him in court, cannot justifiably claim to have an expectation of privacy as to any statement he makes."33 Against this backdrop, the majority's approach in Hyde, deviating as it does from the legislature's express intentions, the federal law upon which it was modeled, and numerous prior express pronouncements of the SJC itself, is puzzling to say the least.34 Moreover, stripped of any basis in privacy protection, Section 99 makes little sense. Apart from protecting property interests that might inhere in speech - interests already amply protected by the common law through concepts like misappropriation, as well as through statutory regimes like federal copyright law - it is difficult to fathom any alternative policy basis for Section 99 apart from protecting the integrity of private communications. Significantly, the majority advances no potential alternative rationales for Section 99 in Hyde.35 Once denuded of its grounding in privacy protection, pernicious and unexpected application of the law becomes possible. As noted already, unannounced or discreet recording of any public event - a classroom lecture or political address - then fall within the purview of Section 99's criminal sanctions. Likewise, legitimate electronic news reporting in any setting in which the subjects are unaware that their words are being captured is prohibited.36 This could not have been the legislative intent behind Section 99. In the final sentence of its opinion, the majority invites the legislature to clarify the statute if, in fact, it was not intended as an "unequivocal[] ban[]" on all "[s]ecret tape recording."37 The General court may well accept this offer. Only time will tell.
The majority opinion in Hyde is notable not just for what the court did say, but also for what was omitted from the decision. For example, the court notes that the defendant had argued, in the context of urging a specific exception to Section 99 for intercepting evidence of police misconduct, "that his prosecution was tantamount to holding him criminally liable for exercising his constitutional rights to 'petition [the government] for redress of his grievances and to hold police officers accountable for their behavior.'"38 The majority bats this complaint aside, observing that the defendant had the benefit of an "internal [police] investigation" "conducted pursuant to his complaint."39 Then the court adds: "[t]he defendant was not prosecuted for making the recording; he was prosecuted for doing so secretly."40 Were it only so simple.
Although apparently not styled as such, the defendant's argument that his prosecution was retribution for "hold[ing] police officers accountable for improper behavior"41 readily might be characterized as a selective prosecution claim. That is, contrary to the majority's view, it was precisely because he lodged a complaint against the commonwealth that the defendant was prosecuted. While not a typical case - there is no hint here that police were motivated by the type of ethnic, racial, or gender bias that has been the hallmark of such cases in the past - a selective prosecution argument may have merit nonetheless.
In Commonwealth v. Franklin42, the SJC set down an enduring test for determining whether the government has engaged in impermissible selective prosecution, and so deprived a defendant of equal protection of the laws. Specifically, a defendant must establish that (1) a broader class of persons than those prosecuted has violated the law; (2) the failure to prosecute other offenders was deliberate; and (3) the decision not to prosecute was based on an impermissible classification such as race, religion or sex.43 Later, in City of Cambridge v. Phillips,44 the court emphasized that even where selection is proved to be deliberate, there is no constitutional violation unless the basis for the selection is one of the immutable personal traits identified in the third prong of the Franklin test. The SJC's test, however, is inconsistent with federal interpretation of equal protection law under the U.S. Constitution.
In fact, a large number of federal decisions have reversed convictions on selective prosecution grounds where a defendant established that he had been singled out for prosecution as a result of his criticism of government policies or actions. For example, in United States v. Falk,45 the court reversed the defendant's conviction for failure to register with the selective service board where he established that his prosecution was based on his public complaints about government policy. Similarly, in United States v. Crowthers,46 the defendant's conviction for creating a public disturbance was reversed where he established that his prosecution amounted to retaliation for his participation in anti-government rallies. In essence, these opinions stand for the proposition that selective prosecution is impermissible if aimed at chilling First Amendment rights, particularly in the context of anti-government speech.47 While there are no findings on the point, it reasonably may be inferred that the prosecution in Hyde likewise resulted from the defendant's complaints about government conduct. The majority acknowledges that the defendant's claims are matters of first impression.48 Indeed, there are no reported decisions in which the criminal provisions of Section 99 have been applied to interceptions of public speech. The defendant appears to have been the only person ever prosecuted in Massachusetts for such an act - a fact the minority emphasizes in Hyde.49 In these circumstances, the SJC's comment that the defendant was not prosecuted for lodging a complaint against police rings hollow.50 Admittedly, the defendant did not expressly raise a selective prosecution claim. And so the court, pursuant to Mass. R. App. P. 16(a)(4),51 was not required to address the issue sua sponte. Nonetheless, the case is redolent with suggestions of governmental abuse. The majority's reference to the motivation for prosecution suggests that the issue was in the air. By failing to reach the question, the court missed an oppurtunity to address a significant point of public concern.
Another notable topic not covered by the majority in Hyde is the question of possible federal preemption. While states are free to enact their own statutes, state laws that deviate from the requirements of a federal statute generally are preempted, and so invalid under the Supremacy Clause of the federal Constitution.52 As noted already, the text of Section 99 is nearly identical in all respects to 18 U.S.C. § 2510 and so, on its face, there is no difficulty with the Massachusetts law. However, if the SJC construes our state law in a manner inconsistent with the federal application of 18 U.S.C. § 2510, Section 99 may be subject to preemption, its identical wording notwithstanding.
There are, however, two potential barriers to preemption here. In the first instance, Congress' authority to legislate in the area of electronic surveillance is derived from its powers under the Commerce Clause.53 Where an alleged interception involves the use of the national telecommunications system, Congress has unquestioned authority. However, in a case like Hyde, where the intercepted communication is not electronically transmitted, and where the intercepting device likewise is not part of any national network, it is possible that Congress has no authority to regulate such conduct. Indeed, it is difficult to see any implications for interstate commerce in such a situation, a prerequisite for federal legislation.54 Further, and more important, federal courts that have considered the preemption issue have concluded that state laws that are more restrictive than 18 U.S.C. § 2510 are not superceded by the federal law. Thus in United States v. Smith,55 the First Circuit concluded that provisions of Section 99 purporting to reduce the requirement for obtaining a wiretap warrant were void, only because they diminished the privacy protections of 18 U.S.C. § 2510. The court added, however, that states are "free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation [than § 2510]."56 In Hyde, to the extent that the SJC has increased the types of interception that fall within the purview of Section 99, there likely is no Supremacy Clause violation.57 Hyde, therefore, is probably safe from federal assault. Whether it will be secure from modification by the General Court, however, remains to be seen. The minority opinion, touting as it does a number of famous (and infamous) examples of secret recordings that brought to light serious government misconduct, has tremendous emotional and intuitive appeal.58 In the end, however, if the legislature does modify Section 99, it may do so simply out of concern that the law, as interpreted in Hyde, potentially proscribes far too many forms of commonplace and benign conduct. Indeed, the majority's view criminalizes most public uses of a tape recorder. Adding a specific requirement that the government must prove that intercepted speech was private to obtain a conviction under the criminal provisions of Section 99 would be an easy cure for the problem.59 Finally, the commonwealth's "Porsche rule": there are five reported criminal decisions in Massachusetts in which a Porsche automobile figured into the mischief. In all five, judgment against the defendant was affirmed.60 Draw your own conclusions.

Roger Michel 1. See e.g. Jeff Jacoby, Editorial, SJC Drops Ball on Privacy, Boston Globe, Aug. 27, 2001, at A9.[back] 2. 434 Mass. 594 (2001).[back] 3. See id. at 605.[back] 4. Id.[back] 5. Id at 595.[back] 6. Id.[back] 7. See id.[back] 8. Id. at 596.[back] 9. Id.[back] 10. Id.[back] 11. Id.[back] 12. Id.[back] 13. Id. at 597.[back] 14. Id..[back] 15. Id. at 600.[back] 16. Mass. Gen. Laws ch. 272, § 99 (B)(4).[back] 17. § 99 (B)(2). Radio transmissions were excluded from the definition of "speech" to permit use of ordinary receivers which otherwise might be characterized as intercepting devices under section 99.[back] 18. The preamble also indicates that, in addition to being aimed at ensuring privacy, section 99 is directed primarily - at least vis-a-vis the criminal penalties the law imposes - at "the increasing activities of organized crime." § 99 (A).[back] 19. Id.[back] 20. Hyde, 434 Mass. at 607-08 (Marshall, C.J., dissenting) (quoting Interim Report of the Special Commission on Electronic Eavesdropping, S. Doc. 1198 at 3 (1967)).[back] 21. Oxford Univ. Press Oxford American Dictionary 202 (1980).[back] 22. 121 S.Ct. 1753 (2000).[back] 23. 389 U.S. 347 (1967).[back] 24. 121 S.Ct. at 1759.[back] 25. 441 U.S. 238 (1979).[back] 26. Id. at 250 n.9 (quoting United States v. United States District Court, 407 U.S. 297, 312 (1972)).[back] 27. The majority in Hyde acknowledges as much. See Hyde, 434 Mass. at 596.[back] 28. 367 Mass. 224, 251 (1975).[back] 29. See, e.g., Commonwealth v. Crowley, 43 Mass. App. Ct. 919 (1997).[back] 30. 422 Mass. 816, 833 (1996).[back] 31. Id.[back] 32. 379 Mass. 893, 910 (1980).[back] 33. Id.[back] 34. The majority makes much of the fact that section 99, unlike its federal counterpart, does not permit secret recording with the consent of one party to the intercepted communication. The majority takes this variation as evidence that the legislature intended to enact "a more restrictive electronic surveillance statute" than other jurisdictions. 434 Mass. at 599. On this basis, the majority makes the crucial - and flawed - logical leap that the legislature therefore intended section 99 "strictly to prohibit all secret recordings by members of the public." Id. (emphasis added). The absence of a one-party consent provision in the Massachusetts law reasonably may be viewed as a desire to protect the privacy of an unconsenting party to an intercepted private communication. There is nothing about such a rule that necessarily suggests a policy of extending the same protection to public speech.[back] 35. This is perhaps the most puzzling aspect of the majority opinion. The majority merely notes that the statute was a reaction to the wide availability of secret recording and intercepting devices, but rejects any suggestion that the legislature, through the medium of section 99, sought to discourage the use of these devices because of the threat they posed to privacy. See Hyde, 434 Mass. at 598.[back] 36. The minority takes a special note of this point: "[t]he statute, on its face, makes no exception for members of the media or anyone else. Had Michael Hyde, the defendant in this case, been a news reporter he could have faced the same criminal consequences that the court now sanctions." 434 Mass. at 614 (Marshall, C.J., dissenting).[back] 37. Id. at 605.[back] 38. Id. at 601-02 (alteration in original).[back] 39. Id. at 602.[back] 40. Id.[back] 41. Id.[back] 42. 376 Mass. 885 (1978).[back] 43. Id. at 894.[back] 44. See 415 Mass. 126, 129 (1993).[back] 45. 479 F.2d 616 (7th Cir. 1973).[back] 46. 456 F.2d 1074 (4th Cir. 1972).[back] 47. See also United States v. Robinson, 311 F. Supp. 1063 (W.D. Mo. 1969) (dismissing an indictment for violation of the federal wiretap statute where defendant established that federal agents committing same offense were not prosecuted).[back] 48. Hyde, 434 Mass. at 598.[back] 49. Id. at 610 (Marshall, C.J., dissenting).[back] 50. See id., at 602.[back] 51. Mass. R. App. P. 16(a)(4) provides in pertinent part that an "appellate court need not pass upon questions or issues not argued in the brief."[back] 52. See Jones v. Rath Packing Co., 430 U.S. 519, 525-26 (1977).[back] 53. U.S. Const. art. I; § 8, cl. 3; see also United States v. Smith, No. 82-1678, 1983 U.S. App. Lexis 26170, at *8 (1st Cir, Jun. 30, 1983).[back] 54. Id.[back] 55. See 1983 U.S. App. Lexis 26170, at *8-9.[back] 56. Id. at *8.[back] 57. See Campiti v. Walonis, 611 F.2d 387, 395 (1st Cir. 1979).[back] 58. In particular, the minority emphasizes that the massive reforms of the Los Angeles police department would not have occurred without the motivation provided by the public airing of the videotape of the beating of motorist Rodney King. One point worth mentioning in this context: chapter 272, section 99 of the Massachusetts General Laws does not proscribe interception of images, only speech.[back] 59. As an alternative to interpreting section 99 as applying only to private speech, the minority urges the adoption of a public policy exception to section 99 for interception of the publication communications of government officials, particularly police officers. See Hyde, 434 Mass. at 614. Needless to say, such a targeted approach would be likely to confront political obstacles.[back] 60. In addition to Hyde, see Commonwealth v. McCravy, 430 Mass. 758 (2000); Commonwealth v. Loach, 46 Mass. App. Ct. 313 (1999); Commonwealth v. Cohen, 27 Mass. App. Ct. 1210 (1989); Commonwealth v. Taghizadeh, 28 Mass. App. Ct. 56 (1989).[back]

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