Privacy and Federalism: The Supreme Judicial Court Clarifies the Scope of the Wiretap Act
By Lawrence Friedman
Recently, in Commonwealth v. Du, 495 Mass. 103 (2024), the Supreme Judicial Court (“SJC”) had occasion to address a novel question arising under the Massachusetts Wiretap Act—specifically, whether, in the circumstances of the case, both the video and audio components of an illegally obtained communication should be suppressed. In addition to clarifying the scope of the suppression remedy under the Wiretap Act, the case illustrates the continuing vitality of federalism and the protections that may be afforded individual rights in the system of dual sovereignty envisioned by the framers of the U.S. Constitution.
First, the case. By way of background, the Wiretap Act prohibits the willful, unconsented “interception of any wire or oral communication.” G.L. c. 272, § 99 (C)(1). The statute applies to interceptions of communications by both private persons and law enforcement officers, with the latter able, upon a sufficient evidentiary showing, to obtain a warrant that allows them to make particular interceptions. Id. at (D)(1)(d), (E)-(N). Unlawful interceptions may result in criminal prosecutions or punishment and the suppression of information obtained as a result of such an interception. Id. at (P).
In Du, an undercover officer, using an application on his cell phone, video recorded the defendant engaged in a series of drug transactions. The first video obtained by the officer contained images of the defendant “approaching the undercover officer, and the two then discuss[ing] the sale while the camera is pointed down at the sidewalk for most but not all of the discussion.” Du, 495 Mass. at 105. The second and third recordings “more clearly show[ed] the defendant’s face” in addition to capturing the defendant’s discussions about the transactions with the officer. Id.
The question in Du was whether the video recordings qualified for suppression under the Wiretap Act, which clearly prohibits unconsented-to-oral recordings. The trial judge allowed the defendant’s motion to suppress “the audio recording,” as the officer had surreptitiously recorded the defendant’s voice in violation of the statute. Id. But the judge did not suppress the video portion, shorn of the audio, and instead ruled it could be used as “permissible evidence.” Id. Both parties sought and were granted leave to appeal, with the Appeals Court holding that both the audio and video components of the recordings must be suppressed under the Wiretap Act. The SJC allowed the Commonwealth’s application for further appellate review.
As the SJC noted, the Wiretap Act mandates the suppression of “any information concerning the identity of the parties to [the wire or oral] communication or the existence, contents, substance, purport, or meaning of that communication.” Id. at 107 (alteration in original) (quoting G. L. c. 272, § 99 (B)(5)). The court viewed as clear the legislature’s instruction in the statute that the suppression remedy should be applied to “any information.” Id. The justices accordingly had little trouble in concluding that, on the facts in Du, that remedy should extend to the recordings at issue in their entirety. Id. First, the court reasoned the recordings actually showed the defendant and, thus, contained information that could be used to identify him. Id.; see id. at 105 n.2. Second, the recordings depicted the defendant engaged in the intercepted communication and, thus, contained information evidencing the communication’s very existence. Id. at 107.
The court rejected the Commonwealth’s argument that, if it stripped out the audio components, there would not be “any evidence that [any] conversation was recorded.” Id. at 108. The court pointed out that the recording still would show at least one party engaged in an unlawfully intercepted communication, thereby indicating that the communication with the undercover officer had been recorded. Id. Further, it reasoned that the Wiretap Act requires the suppression of the “contents” of the intercepted communication, which in this case would include the video component. Id.
Finally, the Du court observed that, in these circumstances, suppression of the entire recording was entirely consistent with the legislative purpose underlying the Wiretap Act. Id. at 109. As the Court put it, the legislature sought through the statute to protect individual privacy rights and deter “interference therewith by law enforcement officers’ surreptitious eavesdropping as an investigative tool.” Id. (citation omitted). To allow the introduction into evidence of the recording, the Court continued, “would undermine the deterrent effect the Legislature intended to safeguard the privacy of the Commonwealth’s residents.” Id.
While upon reflection Du may appear a rather ordinary case of statutory construction, it is important to appreciate that, notwithstanding the protection nominally afforded individual privacy under the Fourth Amendment, the U.S. Constitution likely would permit law enforcement officers to engage in just the kind of “surreptitious eavesdropping” that the SJC confronted here. In general, the federal constitutional protection against unreasonable searches and seizure is not triggered unless, in the circumstances, there exists a reasonable expectation of privacy. Federal law has long held that, when you are engaged in a conversation in a public place, you cannot reasonably expect that communication to be deemed private—the Supreme Court has stated that an individual essentially assumes the risk that a person with whom they are speaking may well betray any confidence the individual believes might attach to the conversation. See Hoffa v. United States, 385 U.S. 293, 302 (1966) (Fourth Amendment does not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”).
Indeed, despite its broad interpretations of the rights to free speech and to bear arms under the First and Second Amendments, respectively, see 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (First Amendment exception to public accommodation rules); New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (Second Amendment protects right to bear arms in public), it seems clear that the current Supreme Court takes a relatively narrow view of the extent to which the federal constitution protects many other individual rights. Perhaps most famously, the Court in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), concluded that the constitutional protection of privacy does not encompass a woman’s right to choose to terminate a pregnancy, and citizens accordingly should look to the states for such protection. See id. at 340. In response, many rights advocates have emphasized the importance of state constitutions and the authority of state courts to determine that the reach of state individual rights protections may well be greater than that of their federal counterparts.
Commonwealth v. Du serves as a reminder that state statutory law, too, may be a source of individual rights protections—like the right to privacy. The Massachusetts Wiretap Act, as construed by the SJC, extends protection beyond what the Supreme Court has held federal constitutional law likely would safeguard. As reported by the Commonwealth Beacon, other states, concerned about the ease with which personal information may be obtained, have looked to the Massachusetts law for guidance in the area of electronic surveillance. Du, then, is an example of the significance of a basic aspect of our federalist system of government: states are not obligated to follow in the paths set down by their federal counterpart and may develop their own understandings of particular rights and interests. In this way, as Justice Louis Brandeis put it, the states may act as “laboratories” of democracy, with policymakers introducing innovations through which they seek to meet the felt needs of their citizens. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Especially with respect to the modern interest in protecting one’s personal information, there is much to be said for the continuing vitality of the states’ authority to engage in such experimentation.
Lawrence Friedman teaches constitutional law and civil procedure at New England Law | Boston; prior to teaching, he was a commercial litigator at Choate, Hall & Stewart, in Boston.
