State fights challenge to recording law

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BOSTON — Suffolk County District Attorney Daniel F. Conley, served this past spring with a federal lawsuit by controversial undercover journalist James O’Keefe’s Project Veritas Action Fund over enforcement of Massachusetts’ recording laws, responded Friday with a motion to dismiss.

Conley’s chief argument for dismissal? Project Veritas has been unable to prove that secretly recording is an “indispensable tool” of newsgathering.

“Plaintiff admits it needs to ‘generate leads, talk about local controversies, and work up possible reporting angles,’ but it fails to articulate why secret recording is needed to do these elementary functions,” states Conley’s motion, drafted by Attorney General Maura Healey’s office.

PVA’s argument is based upon “pure speculation,” Healey’s office added.

In their initial filing, PVA named Conley as a defendant based on “his power to prosecute for illegal interception of oral communications that occurs within the office’s jurisdiction.”

Suffolk County encompasses all of Boston.

In later filings, PVA cited an inability to legally secretly record landlords as part of a potential report they’re planning. Conley’s motion calls out PVA for electing to not first engage in “common, non-illegal, activities for gathering news” in order to prove that the state’s statute “is indeed currently preventing Plaintiff from engaging in secret recording of Massachusetts residents.”

Conley’s motion also claims that PVA’s complaint features “too many holes.”

“Instead, Plaintiff rushed to the federal court to try a facial attack on a state statute that bars conduct that Plaintiff does not even now know it will engage in— for, presumably, if Plaintiff’s efforts at generating Massachusetts-based leads fail, Plaintiff will never have reason to wish to engage in secret recording here,” Healey’s office noted. “Such a speculative supposed injury stands in stark contrast to pre-enforcement cases in which standing has been found.”

Under Massachusetts law, there are civil and criminal penalties — including imprisonment — associated with creating unauthorized recordings, including with hidden cameras, according to the Reporters Committee for Freedom of the Press in Arlington, Virginia. The statute has been on the books since before 1968.

The state’s “interception of wire and oral communications” law, the American Civil Liberties of Massachusetts notes, “prohibits willful interception – in secret – of any oral communication, without having obtained the prior authorization of those taking part.”

The “authorization” section, however, was successfully challenged in court by a Russian immigrant named Simon Glik who had originally been convicted of breaking the state’s wiretap law by secretly recording Boston University police during a 2007 political protest.

Glik, who used his cell phone to record the arrest of an activist, sued. After losing his case, Glik took his complaint to a Boston federal appeals court. In 2011 the court ruled that Glik had a right to record government officials in public. The ACLU claimed there is a distinction, however — in Glik’s case, he made no apparently attempt to conceal his recording. The PVA complaint is challenging the “concealing” distinction.

“PVA has forgone this First Amendment activity strictly because of the statute,” the group stated in its lawsuit.

Conley’s motion to dismiss argues that PVA’s claim “is not even close to cases in which plaintiffs have detailed how their speech was chilled,” and cites several previous decisions as precedent.

The argument drawn up by Healey’s office also questions PVA’s true motives.

“Its ‘interest” is “secretly recording conversations with public officials, candidates for office, politicos or others relating to matters of public interest,’” the motion states. “It fails to understand that private conversations are different.

“There is something different about secret recording; the Massachusetts Legislature stated that it is different and that secret recording ‘pose[s] grave dangers to the privacy of all citizens of the commonwealth.’”

Most recently, O’Keefe traveled to Michigan in an attempt to show flaws in the state’s voting laws. Specifically, the undercover videos aimed to prove how a lack of a photo identification requirement could be exploited.