Citizens who want to document police misconduct need more protection than the statute, the Hyde opinion, and Summerville’s Glik ruling provide. As long as state law prohibits secret recordings of police activity, there can be little effective deterrent to police abuse. Without evidence, citizens cannot credibly pursue complaints. Under Massachusetts’s Hyde standard, as Chief Justice Margaret Marshall pointed out in her vigorous dissent in that case, the Rodney King video taper (or a reporter in the same position) would have committed a crime by recording that infamous example of police brutality on a Los Angeles street.

When cops take off their badges and go home at the end of the day, they should, of course, expect they won’t be harassed by tape-recorder-wielding citizen advocates. But they should not expect privacy in their official speech and actions while on the clock. What the state does is the public’s business. In a democracy, we citizens are the owners, not the servants, and especially not the designated victims.

The legislature should address this flaw in our wiretapping statute, since the Supreme Judicial Court majority has failed to do so. Good governance and public officials’ integrity are only helped by letting citizens record their interactions with public officials — secretly or openly. Accordingly, one solution to the bad precedent created by Hyde would be to recognize in a reconfigured wiretap law that public officials and employees, and especially police officers, have no privacy right in what they say and do while exercising the authority of office or law.

Since we’re living in a surveillance society — evinced by municipal street-corner video cameras and the federal government’s warrantless wiretapping program — we citizens should at least be able to turn the tables and surveil those who are watching and listening to, and sometimes abusing, us. It’s still a free society, right?

Harvey Silverglate is a Boston-based criminal defense and civil-liberties lawyer, and James F. Tierney is his research assistant and paralegal. Silverglate’s forthcoming book, tentatively titled Three Felonies a Day, deals with prosecutions under vague statutes. Jan Wolfe assisted in the preparation of this piece.

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