Gunshot Sensor Sparks Privacy Concerns04:46

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A murder case in New Bedford is raising tough questions about what happens when technology, law enforcement and privacy rights collide.

At the center of all this is an acoustic sensor that's meant to detect the sound of gunfire, but that ended up recording a street argument just before a fatal shooting. Prosecutors are now using that recording as evidence against two defendants, and that's troubling to some civil liberties advocates.

To weigh the pros and cons of this new policing technology, WBUR's All Things Considered host Sacha Pfeiffer spoke with civil rights attorney Kevin Powers, a partner in the Boston law firm Rodgers, Powers & Schwartz LLP and a member of the Massachusetts Bar Association's Individual Rights and Responsibilities section. Powers says it's difficult to determine where to draw the line between a valuable law enforcement tool and people's privacy.

Kevin Powers: The civil libertarians will say this increased technology, the increased ability to watch people and hear people who speak on the public streets, is an incursion into people's civil rights — their right of privacy. And more and more we're going to have this technology that can do this, and more and more it will take away people's rights. That's the civil libertarian view. The other view would be that if you're on a public street, you should be aware that — whether or not you're doing something wrong — you can be subject to being taped.

Sacha Pfeiffer: But of course we have a law in Massachusetts, our wiretap law, that says that both parties have to agree to be taped. Someone can't be secretly recorded. So are you saying that in some cases it's OK to be recorded without knowing it?

Under Massachusetts law, you cannot secretly record someone's oral communication — period. I think the police have violated the wiretapping statute and shouldn't be allowed to use the tape recording.

What you're saying is good news for civil libertarians, who believe that we should be able to have conversations on the street without police coming after us for them later. On the other hand, the police lose a valuable law enforcement tool if this won't hold up in court. What are your thoughts about that? Should the police have a little bit more flexibility?

Certainly we don't want every conversation, every time we step out on the street, to be recorded. On the other hand, if you're engaged in criminal activity, most people want that recorded so that those people can be put in jail. The tension is: how do you reach a middle point where we're not overly surveillanced?

And do you have an answer to that?

There is no answer to that. It's going to have to develop over time.

And just be hashed out in the courts over time?

Hashed out over the courts.

You have a view, I understand, that the state wiretap law — the one that requires people on both sides of the conversation to agree to be recorded — needs to be updated for the modern era. Why?

The wiretapping statute is a very old statute. It was meant to be used against organized crime who were tapping people's phones. That has no relevance to our present society, where virtually every person in the city has some kind of cellphone that they can record conversations and videos.

Let me give you an example. There was a young woman on the MBTA who saw someone who was exposing themselves. She took a video of that person. Now, it's sound and video. That person was apprehended as a result of that. That's a good thing. Technically, she probably violated the wiretapping statute. And everyone does it. Kids do it all the time.

Any parting advice for citizens, given the tensions and gray areas of the law you just pointed out?

I think citizens should expect that when they walk out on the street, especially city streets, that they're subject to being recorded. If you walk by banks, if you walk by many, many buildings in the city, there's a video camera that records what you're doing. And we have to expect that.

So you should keep in mind, to some degree, everything you are saying when you're in public? Has it really gotten to that?

Yes. And if you want to say something that you want private, say it in the privacy of your home.

This program aired on January 11, 2012.