6/22. The U.S. Court of Appeals
(1stCir) issued its
opinion in Jean v. Massachusetts State Police, affirming the
judgment of the District Court. The Court of Appeals, extending the Supreme
Court's opinion in Bartnicki v. Vopper, held that a web site operator who
published a video captured by a home baby cam of a warrantless and unlawful
state police search of that home is protected from prosecution by the state by
the First Amendment. However, the Court of Appeals wrote that the underlying use
of the baby cam violated the state wiretap act.
Background. Paul Pechonis is an individual who resides in the state of
Massachusetts. The Court of Appeals opinion provides little detail about him.
However, a quick internet search producers numerous news stories and blog
entries regarding Pechonis and the events that gave rise to this case. However,
he is not a party to the present case.
The Court of Appeals opinion discloses that armed state police went to his
home, handcuffed him and "conducted a warrantless search of his entire house.
The arrest was both audiotaped and videotaped by a “nanny-cam,” a
motion-activated camera used by parents to monitor children’s activities within
the home. The parties contest whether the recording was accidental; this fact is
immaterial to the outcome of the case."
The Court of Appeals described Mary Jean, who is a party to this action, as
"a local political activist in Worcester, Massachusetts, maintained a website
displaying articles and other information critical of former Worcester County
District Attorney John Conte".
Pechonis gave Jean a copy of the video captured by the baby cam. She
published it in her web site. The state police then attempted to suppress her
publication by threatening her with criminal prosecution under the state wiretap act. That
is, they asserted that a baby cam used in a private home is a criminal violation.
The Massachusetts state police wrote a letter to Jean demanding that if she
did not "cease and desist, within 48 hours of receipt of this letter, from
posting this unlawful tape on the internet or any other publicly accessible
site," then the state police would "refer this matter to the District Attorney's
office for further investigation and possible prosecution."
The Court of Appeals wrote, without explanation or analysis, that the
recording was "illegally recorded" and that it constituted an "illegally
intercepted tape". The opinion does not identify whether this was a stipulated
fact, a factual conclusion, a legal holding, or dicta.
District Court. Mary Jean filed a complaint in
U.S. District Court (DMass) against
the Massachusetts State Police and others seeking temporary and permanent
injunctive relief against prosecution, threatening prosecution, or interference
with her publication.
She argued that her actions were protected by the First Amendment of the U.S. Constitution.
The District Court held that Bartnicki v. Vopper is controlling, and
issued a preliminary injunction.
The Massachusetts State Police brought the present appeal.
Statutes. The Bartnicki case involved the federal Wiretap Act,
which was enacted as Title III of the Omnibus Crime Control and Safe Streets Act
of 1968. It is codified at 18 U.S.C. § 2510 et seq. It prohibits the
interception of wire, oral, and electronic communications, without a court order.
18 U.S.C. § 2511 provides, in relevant part, that "(1) ... any person who ... (c)
intentionally discloses, or endeavors to disclose, to any other person the contents of any
wire, oral, or electronic communication, knowing or having reason to know that the information
was obtained through the interception of a wire, oral, or electronic communication in violation
of this subsection ... shall be punished ...".
18 U.S.C. § 2510, the definitional section of the Wiretap Act, provides that
an "oral communication" means "any oral communication uttered
by a person exhibiting an expectation that such communication is not subject to
interception under circumstances justifying such expectation, but such term does
not include any electronic communication".
The present case involved the Massachusetts state wiretap statute, at Mass.
Gen. Laws ch. 272, § 99. It provides at § 99(B)(4)
that an "interception" means "to secretly hear, secretly record, or aid another
to secretly hear or secretly record the contents of any wire or oral
communication through the use of any intercepting device by any person other
than a person given prior authority by all parties to such communication."
§ 99(C)(1) the provides that any person who "willfully
commits an interception, attempts to commit an interception, or procures any
other person to commit an interception" may be punished with a fine of up to ten
thousand dollars, imprisoned for up to five years, or both.
§ 99(C)(3) then provides that an individual who
"willfully discloses or attempts to disclose to any person the contents of any
wire or oral communication, knowing that the information was obtained through
interception ... shall be guilty of a misdemeanor."
The two statutes are similar. Both cover the recording of conversation (which
is an oral communication) and video recordings. The federal statute covers a
"communication uttered by a person exhibiting an
expectation that such communication is not subject to interception under
circumstances justifying such expectation". That is, it codifies the two prong
test applied by the Supreme Court in 4th Amendment cases. There must be both an
expectation of privacy, and that expectation must be reasonable. See, 1967
opinion in Katz v. U.S., reported at 389 U.S. 347, and its progeny.
The Massachusetts statute is more vague. It merely refers to a "secret"
Bartnicki v. Vopper. On May 21, 2001, the Supreme Court issued its
Bartnicki v. Vopper, holding that a radio host (Vopper) cannot be sued
under 18 U.S.C. § 2511 for playing an audio recording of a cellular telephone
conversation, despite the federal statute that made illegal both the
interception of the conversation, and its disclosure.
The majority reasoned that the case pitted statutes banning disclosure of
illegally obtained electronic communications against the First Amendment freedom
of speech claims of persons with illegally obtained recordings to disclose them
if their content pertains to a public issue.
The Supreme Court wrote that the recording violated federal wiretapping law,
that Vopper knew this, but that he did not make the illegal intercept. It
reasoned that the statute's application in this situation would violate Vopper's
free speech rights under the First Amendment. See,
"Supreme Court Diminishes Electronic Privacy" in
TLJ Daily E-Mail
Alert No. 192, May 22, 2001.
Court of Appeals. The Court of Appeals affirmed. It too extended
Bartnicki v. Vopper to the facts of this case.
The Court of Appeals held that "the First Amendment prevents Massachusetts
law enforcement officials from interfering with an individual's internet posting
of an audio and video recording of an arrest and warrantless search of a private
residence, when the individual who posted the recording had reason to know at
the time she accepted the recording that it was illegally recorded".
The Court of Appeals first wrote that both the state and federal wiretap
statutes are content neutral. Then the Court of Appeals, like the Supreme Court,
weighed the interests in privacy against the public interest in dissemination of
information of public interest.
The Court of Appeals concluded that the privacy interest of the police is
"virtually irrelevant here, where the intercepted communications involve a
search by police officers of a private citizen’s home in front of that
individual, his wife, other members of the family".
The Court of Appeals also wrote that it is significant that the interceptor
was known in this case, but not in Bartnicki v. Vopper. It concluded that
"there is a better argument for prosecuting a subsequent publisher of
information when the interceptor is anonymous". (Underscore in original.)
The Court of Appeals added that "The police do not deny that the event
depicted on the recording -- a warrantless and potentially unlawful search of a
private residence -- is a matter of public concern."
The Court of Appeals concluded that "We conclude that the government
interests in preserving privacy and deterring illegal interceptions are less
compelling in this case than in Bartnicki, and Jean’s circumstances are
otherwise materially indistinguishable from those of the defendants in
Bartnicki, whose publication of an illegally intercepted tape was protected
by the First Amendment. Jean's publication of the recording on her website is
thus entitled to the same First Amendment protection."
Analysis. First, this opinion is a victory for freedom of speech or of the press.
It will especially benefit individuals who engage in political expression on the internet.
Second, this opinion is a defeat for privacy rights. By further expanding the
scope of the Bartnicki v. Vopper exemption, this case provides further
incentive for persons, entities and governments to wiretap, bug, and surveil in
violation of state and federal laws, and then transfer, or launder, the fruits
of their surveillance through news media or internet bloggers.
Finally, there is the matter that the District Court and Court of Appeals
both concluded that the underlying use of the baby cam was "illegal" under the
Massachusetts wiretap statute, and this case is "materially indistinguishable"
from Bartnicki v. Vopper, which involved the federal wiretap statute.
Bartnicki v. Vopper involved a wiretap of a cell phone conversation in
the classic sense of the term wiretap. The Congress has enacted and amended the
federal statute with this sort of intercept in mind.
In contrast, baby cams are used by millions in a manner not contemplated as
illegal by the Congress or the Massachusetts legislature. Baby cams are used to
monitor babies and children both in the home, and from a distance. They are used
to supplement the efforts of teenage baby sitters. They are used by persons with
disabilities to monitor conversations and events in the house which they cannot
reach because of their disabilities. These are socially beneficial uses. Yet,
the opinion of the Court of Appeals calls into question the legality of these uses.
Moreover, the wiretap statutes are designed, in large part, to protect
individuals from unreasonable searches and seizures by the police. Yet, in the
present case, the police who conducted a warrantless search and seizure
perversely and unprofessionally attempted to use a wiretap statute to prevent
the public from learning about its warrantless searches and seizures.
The Massachusetts wiretap statute provides that "secret" is an element of the
crime. The Court of Appeals could not have based its conclusion that the
operation of the baby cam was "secret" on the fact that Pechonis failed to
disclose it to the police. He did not invite them to his home. They came and
immediately arrested him. His constitutional right to remain silent attached at
the outset, when the police handcuffed him. He could have been under no duty or
obligation to disclose the baby cam, because that would necessarily imply that a
state statute can override a U.S. Constitutional right. Hence, the reasoning of
the Court of Appeals must have been that there was a per se illegality when the
baby cam captured a third party.
The Court of Appeals has called into question the legality of using in monitoring devices
in a private home, for private reasons. Yet, it provided no legal analysis, and no elaboration
regarding what situations might be illegal, and what might be legal.
Hermanson of the law firm of Choate Hall & Stewart represented Mary Jean
before the Court of Appeals. He told TLJ that the illegality of the baby cam
"was not a significant issue in this case", and that Pechonis' "conduct ...
really wasn't part of what the First Circuit was being called to evaluate".
He added that "the issue has been held for another day".
This case is Mary Jean v. Massachusetts State Police, et al., U.S. Court of Appeals
for the 1st Circuit, App. Ct. No. 06-1775, an appeal from the U.S. District Court for the
District of Massachusetts, Judge Dennis Saylor presiding. Judge Lipez wrote the opinion of
the Court of Appeals, in which Judges Boudin and Campbell joined.