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Massachusetts law about recording police

A compilation of laws, cases and web sources on audio and video recording of police activity by the public.

Table of Contents

Massachusetts laws

MGL c.272, § 99 Interception of wire and oral communications.

Ruled unconstitutional as applied to recording police in most circumstances. See Martin v. Gross, below.

Massachusetts case law

A series of 3 cases, beginning in 2011, explain current law in Massachusetts.

Glik v. Cunniffe, 655 F.3d 78, 2011
There is a constitutional right to videotape police carrying out their duties in public.
 

though not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.

Gericke v. Begin, 753 F.3d 1 (2014)
"the threshold question here is whether the occasion of a traffic stop places Gericke's attempted filming outside the constitutionally protected right to film police that we discussed in Glik. It does not."

an individual's exercise of her First Amendment right to film police activity carried out in public, including a traffic stop, necessarily remains unfettered unless and until a reasonable restriction is imposed or in place.

Martin v. Gross, 340 F.Supp.3d 87 (2018)
"Section 99 may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions.... The First Amendment protects both audio and video recording."

The Court declares Section 99 unconstitutional insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions.

Martin v. Gross, U.S. Dist. Ct, Mass., Civil Action No. 16-11362-PBS, May 22, 2019
U.S. District Court held that a declaratory judgment is more appropriate than an injunction in this case. The declaratory judgement reads: "The Court declares Section 99 unconstitutional insofar as it prohibits the secret audio recording of government officials, including law enforcement officers, performing their duties in public spaces. This prohibition is subject to reasonable time, place, and manner restrictions."

The Court orders that this declaration be provided to every police officer and to all assistant district attorneys within 30 days.

Web sources

Federal court rules cops can't arrest you for secretly filming them, The Root, 2018.
Provides examples of incidents when people had been arrested for taping police in Massachusetts. "A federal court ruled that recording law enforcement officials performing their duties in public is protected by the First Amendment, even if the recordings are done in secret."

You can secretly record officials and police in Massachusetts, a judge ruled, Boston Magazine, 2018
In a victory for two very different groups of people, a federal judge has ruled that a Massachusetts law against secretly recording police officers or government officials in public places is unconstitutional.

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Last updated: May 29, 2019
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