Eavesdropping on the Police:
The Michael Hyde Story
By Neal Alpert

The story, with its indelible images, is familiar to all of us: it was a little over ten years ago, early one morning at the beginning of March, when Rodney King was pulled over by the police in Los Angeles, had an angry verbal confrontation with the officers, and was then brutally assaulted by several of them. This was an outrageous example of our public servants gone wildly out of control, using excessive force as they savagely kicked King, landed 56 baton blows to his body, battering and bloodying him. The beating was so loud and raucous, in fact, that it caught the attention of George Holliday in his nearby apartment. He got out of his bed and went to his window, where he witnessed the horrible scene. Holliday immediately went to get his video camera, and he captured the whole awful episode on tape. This tape was eventually seen on news stations across the country, and the public outrage that soon followed led to riots in L.A. and cries of police brutality. In the long term, however, the tape led to reforms. The police officers involved in the incident were eventually held accountable for their actions, and police officers across the country realized that they were being closely watched by society. It was now clearly understood that such behavior would not be tolerated. Those videotaped images rocked this nation's consciousness, and offered clear proof that our police force, as much as any other arm of our government, needs to be properly monitored to protect against corruption.

Due to a recent ruling by the Massachusetts Supreme Court, however, the ability to properly watchdog our police has been severely hampered. So much so, in fact, that Chief Justice Margaret Marshall stated in her dissent that, had the King incident occurred in Massachusetts, "...under today's ruling Holliday would have been exposed to criminal indictment rather than lauded for exposing an injustice." The case in question is far less graphic than the King incident, but the reverberations are just as disturbing.

It all started on October 26, 1998, when Michael Hyde was pulled over by police in Abington, MA, because of a loud engine, a broken license plate light, and a noisy muffler. Upon being pulled over, Hyde activated a hand-held tape recorder and captured the whole encounter on audiotape, without the policemen's knowledge. The musician, who has long hair and was driving a flashy sports car, felt he was harassed by the police officers, who asked him if he had cocaine in his car, threatened him with jail time, and used foul language. Several days after the incident, he brought the "smoking gun" down to the police station to back up his claim that he had been harassed. Rather than receiving an acknowledgement of the harassment, however, Hyde was charged with violating the state's electronic surveillance laws, which state that one person may not record the voice of another person without first gaining that person's consent. This past July, the Massachusetts Supreme Court upheld Hyde's conviction, and now the people of Massachusetts, as well as the country, must contemplate the implications of the court's ruling. Issues such as who is entitled to have expectations of privacy, and how this decision impacts our being able to effectively watchdog our public officials must now be pondered.

A good starting point for this discussion is examining the law which was supposedly violated by Michael Hyde. His case revolves around Massachusetts' electronic surveillance law, which dates back to the 1960s. The federal version of this law appeared on the books in 1968, when the government was engaging the use of telephone wiretaps to investigate the world of organized crime. At this time, technology was also improving to the point where small recording devices such as tape recorders were becoming more commonplace. The natural fear was that the telephone wiretaps would not stop with just listening in on suspected criminals. Thus, the original electronic surveillance laws were drafted in order to prevent eavesdropping of peoples' private telephone conversations (subsequently, the law has been extended in several states to forbid the recording of anyone's words without their consent). Boiled down to their essence, the laws protect people's right to privacy, both from the government, and from each other.

However, certain exceptions to the law exist. The Massachusetts law states that the police can secretly record individuals during the course of an investigation, or if they have first obtained a warrant. The reasoning for this is clear: the police may need, in order to make their case in court, hard evidence that proves their version of events. Thus, the need for such inscrutable evidence is seen to supersede the individual's right to privacy.

The Hyde case is so inflammatory because it essentially states that while the police have a right to bypass the individual's right to privacy to obtain incontrovertible evidence, the individual does not have a reciprocal right to do the same. In most cases, this is a non-issue, because the majority of this nation's police officers do their job effectively and professionally. However, when one considers the possibility, no matter how remote, of another Rodney King-style incident, one realizes that our ability to effectively monitor the conduct of our police is something that should be taken quite seriously.

Another reason the case is sparking controversy is because one valid question the Hyde case raises is whether a police officer should be protected by the same privacy rights as any other citizen. A police officer, after all, is as much a member of this country as, say, a banker or a doctor. However, this is an open society founded upon the idea that we must keep our politicians, our judges, and other public officials open to public scrutiny. This allows us to keep an eye on them to protect against possible corruption. Most governmental hearings and court cases are, therefore, open to the public, and public servants in these situations are aware that their words and actions on the job are to be part of the public record. Referring to Massachusetts laws, Harvard Law Professor Martha A. Field says that "Unless there is a specific clause in the law that makes an exception, which I'm unaware of, public officials do not have the expectation that their words are protected by any privacy rights while on the job." That being the case, one should question why the words and actions of lawyers and city councilmen aren't considered private, as determined by the Hyde ruling, while the words and actions of police officers are. Field says that, from what she's heard of the case, " seems the police officers were treated before the court as any other citizen would be." That leaves us to wonder whether police officers are the only public servants who are allowed to enjoy a right to privacy while on the job.

"According to the way the statute was interpreted here, the answer is that they should and they do," says Bill Newman of the ACLU. The Massachusetts SJC ruled that a ruling in Hyde's favor would not only violate the officers' rights to privacy, but would also be a slippery slope that could result in a nightmarish society in which every encounter with a public official, be it a police officer, a congressman, or a teacher, could be secretly tape recorded. This is the very notion that the electronic surveillance laws are designed to protect against. However, the dissenting opinion in the Hyde case offers a more realistic assessment. Marshall's dissent states that "There is a difference in kind, well recognized in our jurisprudence, between police officers, who have the authority to command citizens, take them into custody, and to use physical force against them, and other public officials who do not possess such awesome powers." The majority opinion attempts to address this issue, stating that, had Hyde simply informed the officers of his intentions to record the encounter, the taping would not have been in violation of the law.

"That clearly is not very realistic thinking," says Newman. Newman, who wrote the amicus brief for Hyde's team, says that, "In reality, if Hyde says 'I'm going to record you,' the police will say 'Turn it off, or we'll arrest you.' As a result of this decision, the police know that they're not going to be recorded, period." Thus, it appears that the only way to record such an encounter would be without the prior consent of the officers. The interpretation by the court that this should be considered illegal was not a unanimous one, though. In her opinion, Chief Justice Marshall states that "In our Republic, the actions of public officials taken in their public capacities are not protected from exposure. Citizens have a particularly important role to play when the official conduct at issue is that of the police." One person who agrees with Marshall's decision is William Stuntz, another Harvard Law Professor who specializes in criminal law. Stuntz says that documented proof in a situation like the Hyde case is not only important, but should be required.

"My own view, to the extent that it's possible, is that these encounters should always be taped, and they should be taped by the police" says Stuntz. "This would preserve evidence of precisely what happened. The Hyde case should not only be not considered a crime, it should be encouraged. The real error here is that the police weren't taping the encounter." Stuntz goes on to say that if it was required that the police tape record every encounter, the scenario in which a private citizen recorded an encounter would be no big deal. The officers would be aware that they were going to be recorded, the people they deal with would be aware of that fact, and the problem of trying to figure out who really did what to whom would be easily solved by listening to the tape. Obviously, in situations like the Hyde case or the Rodney King case, without some documented proof from one side or the other, the courtroom can easily deteriorate into a "He said, She said" scenario in which the truth may never be established. Marshall's opinion recognizes that when it simply comes down to the individual's word versus that of the organization's, the road to credibility can be particularly difficult.

Incidents like the Hyde and King cases highlight this fact. Consider how different these stories would be if we removed the taped evidence: without the accompanying video, would King be taken at his word when he claimed that he was beat up at the hands of the men we pay to protect us? Would Hyde's claim of police harassment hold any weight with the public? Probably not. In both cases, the documented evidence is essential in supporting the claims made against the police. That fact is one of the reasons why the Hyde case impacts the world of journalism, as well. In the past several years, journalists have frequently been involved in lawsuits over the way they collect evidence to support their stories. The technique of going undercover to secretly record official misconduct or other practices that must be brought to the public's attention, while usually held as a last resort to report a story, has been an important tool in covering several important stories throughout the years. There should be the worry, however, that the Hyde decision will now be used as new ammunition in court against undercover reporters who have had to secretly record people for their stories. This fear of prosecution could further cripple the ability of people in the media to do their job of exposing public wrongs.

Hyde's attorney, Peter Onek, says "We do intend to appeal the case to the federal Supreme the hopes that the case will be reviewed." Meanwhile, the full ripple effect of the Hyde decision has yet to be felt. Certainly, in the wake of the recent terrorist activity, people who raise the notion of civil liberties like privacy rights or who question police conduct are likely to be taken seriously a little less than they would be three months ago. Still, regardless of current events, this country has a history of holding its public officials accountable. The notion of essentially having to "police the police" by tape recording every encounter seems as ridiculous as does the notion that a police officer's words and actions on the job are private. However one decides to look at it though, the Massachusetts Supreme Court decision against Michael Hyde is unsatisfactory, and, whether it be in the federal Supreme Court or not, it must be revisited. In the meantime, let us hope that it does not take an incident as shocking as the Rodney King case to make that return trip.