3. ANTI-RECORDING LAWS. Before I forget it, let me follow up on an earlier post, which I'll link to later when I have time, on the laws some states have forbidding a person to tape record a conversation he is having. This is the law that they were going to prosecute Linda Tripp on (whatever happened to that?) after she made an enemy of President Clinton. Reader R. Geoffrey Newbury pointed me to an appalling case he had heard about from some other blog he's now forgotten, the Massachusetts COMMONWEALTH vs. MICHAEL J. HYDE (2001). It seems some traffic police were obnoxious to a motorist they stopped, who made a tape of the conversation and used it to make a formal complaint at the police station about their obscenities, etc. The policemen were exonerated by the internal process, but:

In the meantime, the Abington police sought a criminal complaint in the Brockton Division of the District Court Department against the defendant for four counts of wiretapping in violation of G. L. c. 272, � 99. A clerk-magistrate refused to issue the complaint, and the Commonwealth appealed. After a show cause hearing, a judge in the District Court ordered that the complaint issue.

The motorist was given a jury trial and convicted on all four counts. He appealed, and lost, 4 to 2. The majority was not aberrant; they were simply following precedent (Commonwealth v. Jackson, 370 Mass. 502 (1976)) and the stated will of the Legislature:

In Commonwealth v. Jackson, supra at 506, this court rejected the argument that, because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim's brother would not be prohibited under G. L. c. 272, � 99: "[W]e would render meaningless the Legislature's careful choice of words if we were to interpret 'secretly' as encompassing only those situations where an individual has a reasonable expectation of privacy." Id.(7)

Clearly this is an evil law, even though the court probably interpreted it correctly. It is as if the legislature had made a law against accusing someone of perjury, or a law against reporting burglaries. Note, too, that the evil effects of the law could have been avoided by prosecutorial discretion. The Commonwealth of Massachusetts deliberately chose to go after Mr. Hyde, and even went to the trouble of appealing and of fighting Mr. Hyde's appeal. I suppose this happened because prosecutors like to keep on good terms with police. The remedy is, of course, political: Massachusetts voters should have taken note and (a) called on the legislature to change the law, (b) voted out the prosecutors, and (c) fired the police chief. [ permalink, http://php.indiana.edu/~erasmuse/w/03.09.08a.htm ]

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