Privacy Law's Dark Side: The Michael Hyde Story

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Published on Tuesday, 25 March 2008

Written by Know My Rights

On October 26, 1998, police in Abington, MA stopped Michael Hyde for driving with a broken license plate light and what they considered an excessively loud muffler. Upon being pulled over, Hyde used a hand-held audio tape recorder to capture his entire exchange with the officers, without their knowledge. Hyde, a musician, felt he was being harassed by the police officers, and that they targeted him because of his long hair and flashy sports car. They detained him well in excess of the time it would have taken to give him a citation, asking him if he had cocaine in his car, searching through a shopping bag in his back seat (filled only with CDs), threatening to take him to jail and using foul language toward him.

After their searches failed to turn up any drugs, they let him go, but Hyde knew his rights had been violated. He filed a complaint against the officers and produced the audio tape as evidence of what transpired during his encounter with them. Rather than reprimand the officers, the police instead chose to bury the harassment complaint and have Hyde charged with a criminal violation of the state's electronic surveillance laws!

The federal surveillance statute, which originated in the 1960s when government agencies were wiretapping telephone communications to gather evidence against participants in organized crime, was passed to protect the privacy of non-suspect individuals from unlawful intrusion by the government. The practical application of acknowledging this privacy right was that government agents were required to seek and obtain a warrant before initiating a wiretap. Several states, including Massachusetts, enacted extensions of this federal law to prevent anyone from recording another person's voice without express consent. Massachusetts, however, makes some exceptions to the law, allowing police to secretly record individuals during the course of an investigation, even if they have not first obtained a warrant. The reasoning for this is that the police may need, in order to make their case in court, incontrovertible evidence that proves their version of events. Thus, the government's need for such evidence supersedes the individual's right to privacy.

The Massachusetts law and subsequent ruling in the Hyde case are so inflammatory because they essentially strip the individual of his privacy rights that exist explicitly to protect him from the government, and then give those privacy rights to the government, thereby decimating the citizen's ability to effectively monitor the conduct of police.

The majority opinion reasons that had Hyde simply informed the officers of his intentions to record the encounter, the taping would not have been in violation of the law. Is the Court so naive as to actually think that police officers willfully violating a citizen's rights would consent to a recording? Or is the Court suggesting that the citizen's threat of recording is the proper means to curtail incidents of police misconduct, whereby upon making the request to record the encounter, the officer, who otherwise would have committed a civil rights violation, will now play by the rules?What happens when someone asks to record a police encounter, and the officer replies "turn it off or else I'll arrest you"? . . . what then?!?

In her dissenting opinion, Massachusetts Supreme Court Chief Justice Margaret Marshall offers a much more realistic assessment. In addressing the issue of privacy rights, Marshall recognizes that "there is a difference in kind, well recognized in our jurisprudence, between police officers, who have the authority to command citizens, take them into custody, and to use physical force against them, and other public officials who do not possess such awesome powers… In our Republic, the actions of public officials taken in their public capacities are not protected from exposure. Citizens have a particularly important role to play when the official conduct at issue is that of the police. "Marshall went on to consider the act of recording itself, and related Hyde's recording to the Rodney King incident. She commented that under this rule of law, had the King incident occurred in Massachusetts, George Holliday [the person who made the video of Rodney King being beaten by police] "would have been exposed to criminal indictment rather than lauded for exposing an injustice." Though the case in question is far less graphic than the King incident, the after effects are just as daunting.

William Stuntz, a professor of criminal law at Harvard, says that documented proof in a situation like the Hyde case is not only important, but should be required! "My own view, to the extent that it's possible, is that these encounters should always be taped, and they should be taped by the police" says Stuntz. "This would preserve evidence of precisely what happened. The Hyde case should not only be considered not a crime, it should be encouraged. The real error here is that the police weren't taping the encounter." If the police were required to tape record every encounter, then a private citizen making his own recording would be of no consequence. The officers would be aware that they were being recorded, the citizens involved in the encounter would be aware of that fact, as well, and the court's problem of trying to figure out who really did what to whom would be easily solved. Without some documented proof of what transpired, the courtroom can easily deteriorate into a "he said, she said," and the truth may never be established. Marshall's opinion recognizes that when and individual's testimony is pitted against that of the government, the road to credibility can be particularly difficult, and the burden of proof in those matters generally falls on the citizen. This statute completely removes any ability that citizen may have had to establish the proof necessary for his testimony to be accepted by the judicial process.

Issues such as who is entitled to an expectation of privacy, and how this decision impacts our ability to watchdog our public officials are called into question. The people of the state of Massachusetts, and the nation as a whole, must now contemplate the implications of this ruling. The most terrifying prospect is that police officers now know with certainty that their actions will not be recorded, reinforcing the thought that they can do whatever they please without regard to law or procedure. The full ripple effect of the Hyde decision has yet to be felt. The notion of having to "police the police" by tape recording every encounter seems as ridiculous as does the idea that a police officer's words and actions on the job are private. However one decides to look at it, the Massachusetts Supreme Court decision against Michael Hyde is unsatisfactory, and whether in the United States Supreme Court or not, it must be revisited. In the meantime, let us hope that it does not take an incident as shocking as the Rodney King case to warrant that second look.

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