On Friday, the Cyberlaw Clinic filed an amicus brief before the Massachusetts Supreme Judicial Court in the case Commonwealth v. Thanh Du. The brief, filed on behalf of the Massachusetts Association of Criminal Defense Lawyers (MACDL), supports Mr. Du in his bid to suppress a secret audiovisual recording of a conversation with an undercover police officer. The case raises pressing questions about the the Massachusetts Wiretap Statute and the role of technology in police surveillance and investigations.
In this case, Mr. Du was recorded, without notice or knowledge, by an undercover police officer. The recording, which had both audio and video elements, was made using a smartphone app that both records content and simultaneously transmits it to other officers. Mr. Du argues that, because the recording was made without his knowledge, it violates the Massachusetts Wiretap Statute. That statute prohibits anyone – including police – from secretly intercepting an oral or wire communication. The Commonwealth argues that Mr. Du knew the undercover officer was holding a cellphone and, thus, was on notice that he could be recorded. More broadly, the Commonwealth asserts that any “recording device” in plain view obviates the prohibition on secret recording.
The Clinic’s brief breaks down the Commonwealth’s argument in stark terms: if you are aware that someone in your vicinity has a cellphone, you are on notice that you could be recorded at any time. Such an extreme interpretation would be inconsistent with the purpose of the Wiretap Statute. The Commonwealth nevertheless argues that this result is compelled by precedent. However, prior cases either involved devices like tape recorders or body worn cameras, which are only used as recording devices, or a cellphone held out in front of the user in a way that clearly indicated recording. A cellphone held casually in someone’s hand does not create the same expectation of recording, and the facts of Mr. Du’s case are, therefore, distinguishable. Finding in favor of Mr. Du and excluding the audiovisual recording in whole would also be most consistent with the Supreme Judicial Court’s history of strengthening, not undermining, privacy protections in the face of advancement in surveillance technology.
The amicus brief was drafted by Cyberlaw Clinic summer interns Eve Zelickson and Lenisha Gibson and incorporated research by Spring 2024 students Quentin Levin and Tomisin Olanrewaju. Clinic instructor Mason Kortz supervised the project, along with Josh Daniels from MACDL. The entire team looks forward to the Court’s ruling in this crucial case.
Image Smartphone Use courtesy user Océanos y dados.
