Glik wins; right to record police upheld in 1st Circuit

The Glik case has been resolved resoundingly in favor of the First Amendment right to publicly to record the activities of police officers on public business anywhere in the First Circuit. One quote summarizes the case best: "Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum.  In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'"

On the MA wiretap law banning secret recordings, the court wrote: “The presence of probable cause was not even arguable here. ... For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was 'secret' merely because the officer did not have actual knowledge of whether audio was being recorded.”

Privacy, surveillance & civil litigation: a Massachusetts guide for private investigators

The Massachusetts Bar Association hosts a good summary of privacy laws as they apply to video surveillance in Massachusetts civil litigation, including insurance cases. One of the leading cases in Mass. is DiGirolamo v. D.P. Anderson & Associates, Inc., The court wrote that investigators may generally observe, or photograph a person in public places. A gray area arises when a person enters the privacy of their own home. The court looked at 4 scenarios as to whether a private investigator violates a person's statutory right to privacy:

~ the investigator looks through a window into an apartment with the naked eye;

~ the investigator looks with the naked eye when a person walks out onto a balcony;

~ the investigator photographs, or looks at the person on a balcony with enhanced vision;

~ the investigator photographs or looks at a person inside the home with enhanced vision.
 
The Mass. court concluded that only the fourth scenario would constitute an unreasonable and substantial interference with the plaintiff’s right to privacy.

The court adopted the United States Supreme Court’s Fourth Amendment analysis from Oliver v. United States. It also quoted a Second Circuit Court of Appeals’ case United States v. Taborda: “Observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy.”

Written by lawyers Joseph M. Desmond & David Viens, this article has some good information on Massachusetts state laws applicable to video surveillance, audio recordings, pretext interviews and pretrial discovery.