Tthrew cold water on police use of a popular covert recording technology, ruling unanimously over Thanksgiving week that cell phone video taken of a suspect during a drug investigation without a warrant violates Massachusetts’ 1968 wiretap law.
Massachusetts has one of the strictest anti-wiretap laws in the country, broadly forbidding recordings of a person without their knowledge. To covertly record suspects, law enforcement must have warrants for the surveillance.
In the decision, the Supreme Judicial Court concluded that because Boston police made an illegal audio recording, the video captured alongside it should also be kept out of evidence under the wiretap statute. This result, Justice Elizabeth Dewar wrote, is “consistent with the Legislature’s stated purposes in providing a strong remedy for violations of the wiretap act.”
What at one point was a fairly straightforward principle – police can’t plant bugs or tap phones or covertly record without a warrant – has been complicated by 21st century technology that makes secret recordings as simple as hitting a button on a cell phone.
Police in Massachusetts and other states have increasingly relied on a phone app called Callyo, which was acquired by Motorola in late 2020. The company advertises the app as a way to “capture evidence and facilitate undercover voice, text and multimedia communications with real-time location tracking – all from secure apps on your phone.”
Callyo is specifically designed to be used “covertly” and allows police to collect digital evidence “from a safe distance,” according to Motorola, which highlights narcotics investigations as a potential use for the technology.
An investigation into the State Police revealed more than 60 Massachusetts state troopers made “covert investigative recordings” in recent years that were never turned over to prosecutors, using Callyo and in many cases violating the state’s wiretapping law, according to the Worcester Telegram. For the past year, State Police have been instructed to obtain “the appropriate warrant” before using Callyo to covertly record, according to a spokesman.
Municipalities in other so-called “two-party consent” states like California and Washington have probed Callyo’s use and cited Massachusetts’ covert recording laws as potential models.
The Bay State’s tangle with Callyo stems from three meetings in East Boston between a Boston police officer and a man named Thanh Du. Acting without a warrant, Dewar wrote, the undercover officer in 2020 made a series of recordings using Callyo on his department-issued cell phone while purchasing drugs like heroin and fentanyl from Du. When he was charged, Du’s attorneys moved for the warrantless recordings to be suppressed.
Generally, the wiretap statute allows any recordings to be suppressed as evidence if they were unlawfully intercepted. Lower courts split on whether the Du audio and video recordings could be treated differently, with a judge excluding the audio from evidence but allowing the state to introduce the video as evidence if shown silently.
The Appeals Court disagreed, unmoved by both the claim that the video recording was untethered from the illegal audio recording and the claim that it has become a common and essential tool of police investigation.
“Even accepting this representation and accounting for the sophisticated investigatory uses to which Callyo is being put elsewhere,” then-Appeals Court Justice Gabrielle Wolohojian wrote at the time, “the Legislature has created a strong bulwark against secret surveillance by law enforcement in this Commonwealth.”
Wolohojian has since been elevated to a seat on the SJC, but she did not take part in the current Du case.
The argument before the SJC included a new line of defense from the state: If a person sees a cell phone, the recording it makes is not secret and therefore does not implicate the wiretap statute. Dewar noted this was the only argument advanced by law enforcement that the audio recording was not unlawful and therefore did not taint the video recorded alongside it.
That the state argued no “‘secret’ recording took place,” Dewar said, is somewhat at odds with testimony from a detective “that undercover officers’ recordings are ‘kept secret’ to avoid frustrating the very purposes of the investigation.”
Footage shows the undercover officer was holding the cell phone in his hand as he recorded, Dewar wrote, which the state argues means the cell phone would have been visible to Du.
Attorneys for the Commonwealth asked the court to revisit its interpretation of the term “secretly” in the wiretap act, to find that it means one could infer that a person is aware of being recorded rather than requiring actual knowledge of the recording.
The court ultimately ignored that argument, focusing instead on the video and illegal audio recording as bound together. The video clearly shows “at least one party to the unlawfully recorded communication and thus contains information that the conversation between the undercover officer and the defendant was in fact recorded,” Dewar wrote.
Several recent SJC cases involve modern interpretations of the wiretap act, including a decision this year that online tracking cookies do not seem to be covered. Justices and law enforcement alike have prodded the Legislature to revisit the nearly 60-year-old law in light of new technologies, but in Du’s case the court decided the underlying principle of deterring rampant secret recordings by police is compelling.
“Permitting routine introduction in evidence of video footage captured as part of unlawful warrantless audio-visual recordings of oral communications – readily made using today’s ubiquitous cellular telephones,” Dewar wrote, “would undermine the deterrent effect the Legislature intended to safeguard the privacy of the Commonwealth’s residents.”
This article first appeared on CommonWealth Beacon and is republished here under a Creative Commons license.
h/t, Joe Cadillic