A federal court today confirmed that the Massachusetts wiretap statute is unconstitutional as applied to the secret recording of police officers performing their duties in public spaces, an update in the ACLU of Massachusetts’ Martin v. Gross lawsuit.

U.S. District Chief Judge Patti Saris' ruling "declares Section 99 unconstitutional insofar as it prohibits the secret audio recording of government officials, including law enforcement officers, performing their duties in public spaces. This prohibition is subject to reasonable time, place, and manner restrictions." Judge Saris ordered that this declaration be provided to every police officer and to all assistant district attorneys within 30 days.

“Boston police and Suffolk County assistant district attorneys are on notice: People in Massachusetts have a fundamental right to record police officers,” said Carol Rose, executive director at the ACLU of Massachusetts. “Time after time, we have seen that videos of police officers can show the realities of policing in powerful ways. Indeed, people’s recordings of police interactions have started national conversations about police reform and accountability. This order ensures that law enforcement officials and community members alike know that the right to record police is constitutionally-protected.”

The ACLU of Massachusetts filed a lawsuit in June 2016 against the Boston Police commissioner and Suffolk County district attorney, defending the right to record police on behalf of two Boston civil rights activists. In December 2018, Judge Saris ruled that secretly recording law enforcement officials performing their duties in public is protected by the First Amendment.

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