Lawyers Argue About Extent To Which Public Officials — Including Police — Can Be Secretly Recorded

The federal appeals court in Boston heard arguments Wednesday about the extent to which private citizens can secretly video and audio record police or other government officials in public spaces.

In 2018, a judge ruled private citizens do have that right, but the Suffolk County District Attorney's office appealed that ruling in 2019. The office argued on Wednesday for a clearer definition of what "government officials" and "public spaces" are.

For instance, if a person confides to a uniformed officer that they've been sexually assaulted, would a secret recording of that interaction be constitutionally protected?

"Our concern, however, is about the rights of private third parties who may be interacting with a public official," DA Rachael Rollins wrote in a statement ahead of Wednesday's hearing. "We're seeking the Court's guidance on issues that impact members of the public acting to hold their government accountable, as well as those who reach out to law enforcement or public officials for assistance."

Other states, like Florida and California, have legal safeguards to address situations where private citizens are interacting with public officials, said Benjamin Barr, a lawyer with the right-wing activist group Project Veritas Action Fund, in court Wednesday.

"Someone who is having a hushed confidential conversation in a back booth of a restaurant, you can protect that," he said. "Massachusetts law is that it doesn't afford opportunities for really important kinds of news gathering in recording public officials doing things in public places — police officers abusing individuals, corrupt goings-ons, anything."

Back in 2016, the American Civil Liberties Union sued the Boston police and the Suffolk County district attorney on behalf of activists in Boston, who sought to secretly record police without retaliation.

Barr hopes that the state Legislature will balance both privacy interests and free speech interests. No decision was rendered Wednesday.