COMMONWEALTH vs. MICHAEL J. HYDE

GREANEY, J. This case raises the issue whether a motorist may be prosecuted for violating the Massachusetts electronic surveillance statute, G. L. c. 272, s. 99, for secretly tape recording statements made by police officers during a routine traffic stop. A jury in the District Court convicted the defendant on four

Page 595

counts of a complaint charging him with unlawfully intercepting the oral communications of another, in violation of G. L. c. 272, s. 99 F. The defendant appealed, and we granted his application for direct appellate review. We conclude that G. L. c. 272, s. 99, strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter. Accordingly, we affirm the judgments of conviction.

The relevant facts are not in dispute. On October 26, 1998, just after 10:30 P.M., an Abington police officer stopped the defendant's white Porsche, because the automobile had an excessively loud exhaust system and an unlit rear registration plate light. Three other Abington police officers arrived shortly thereafter and the stop quickly became confrontational [Note 1]. During the course of the stop, which lasted approximately fifteen to twenty minutes, the defendant and his passenger, Daniel Hartesty, were ordered out of the automobile, and Hartesty was pat frisked. One officer reached into the automobile, picked up a plastic shopping bag that lay on the floor by the passenger seat, and looked inside. (The bag contained compact discs.) At one point, the defendant stated that the stop was "a bunch of bullshit," and that he had been stopped because of his long hair. One officer responded, "Don't lay that shit on me." Later, another officer called the defendant "an asshole." The defendant was asked whether he had any "blow" (cocaine) in the car. At the conclusion of the stop, the defendant and Hartesty were allowed to leave. No traffic citation was issued to the defendant, and the defendant was not charged with any crime. According to the testimony of one police officer, the defendant was "almost out of control" and the stop "had gone so sour," that it was

Page 596

deemed in everyone's interest simply to give the defendant a verbal warning. Unbeknownst to the officers, however, the defendant had activated a hand-held tape recorder at the inception of the stop and had recorded the entire encounter.

Six days later, the defendant went to the Abington police station to file a formal complaint based on his unfair treatment during the stop. To substantiate his allegations, he produced the tape recording he had made. A subsequent internal investigation conducted by the Abington police department, which concluded on February 1, 1999, exonerated the officers of any misconduct.

In the meantime, the Abington police sought a criminal complaint in the Brockton Division of the District Court Department against the defendant for four counts of wiretapping in violation of G. L. c. 272, s. 99. A clerk-magistrate refused to issue the complaint, and the Commonwealth appealed. After a show cause hearing, a judge in the District Court ordered that the complaint issue.

The defendant filed a motion to dismiss the complaint. He claimed that G. L. c. 272, s. 99, was intended to protect the privacy rights of individuals, and, because the police officers were performing official police duties during the stop of his car, they had no privacy expectations in their words, and, as a result, their conversation should not be considered "oral communication" within the statute. Because, in the defendant's view, there was no interception of any "oral communication," there could be no violation of G. L. c. 272, s. 99. In support of his position, the defendant relied on Federal cases interpreting the term "oral communications" as defined in the Federal electronic surveillance statute, 18 U.S.C. s. 2510 (2000), to require the speaker to have a justifiable expectation of privacy. The defendant asserted that Massachusetts courts have looked to Federal decisions interpreting the Federal statute for guidance in interpreting other portions of our electronic surveillance statute, see Commonwealth v. Look, 379 Mass. 893 (1980), and so we should also look to Federal precedent for the proper interpretation of the term "oral communication" in our statute.

The judge (the same judge who had ordered that the complaint issue) rejected the defendant's argument and denied the motion to dismiss. The judge reasoned that the definition of

Page 597

"oral communication" under G. L. c. 272, s. 99 B 2 ("speech, except such speech as is transmitted over public air waves by radio or other similar device"), was clear, and, unlike the definition in the Federal electronic surveillance statute [Note 2], did not require an expectation of privacy by the speaker in order to make the statute applicable. He concluded that the Massachusetts statute prohibited the secret tape recording of the police officers' speech. The defendant was tried before a jury and convicted of four counts of violating G. L. c. 272, s. 99.

The defendant once again claims, as his principal argument, that the judge improperly denied his motion to dismiss, because the police officers did not possess any privacy interest in the words they spoke in the course of the stop, and, therefore, his tape recording of the encounter did not violate G. L. c. 272, s. 99. The Commonwealth asserts that the plain language of the statute unambiguously expresses the Legislature's intent to prohibit the secret recording of the speech of anyone, except in specifically delineated circumstances. We agree with the Commonwealth.

General Laws c. 272, s. 99 C 1, set forth below [Note 3], prohibits, unless otherwise specified in the statute, the intentional interception of any oral communication. The statute provides that "[t]he term 'interception' means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any

Page 598

intercepting device [Note 4] by any person other than a person given prior authority by all parties to such communication . . . ." G. L. c. 272, s. 99 B 4. An "oral communication" is defined as "speech, except such speech as is transmitted over the public air waves by radio or other similar device." G. L. c. 272, s. 99 B 2. Exceptions to the general prohibition are clearly specified within the statute and include recordings by (1) a communication common carrier in the ordinary course of its business, see G. L. c. 272, s. 99 D 1 a (commonly referred to as "service observing"); (2) persons using an office intercommunication system in the ordinary course of their business, see G. L. c. 272, s. 99 D I b; (3) an investigative or law enforcement officer, if the officer is a party to such communication or has been given prior authority by such a party, and if the recording is made in the course of investigating certain designated offenses in connection with organized crime, see G. L. c. 272, s. 99 B 4 and 7; and (4) persons duly authorized to make specific interceptions by a warrant issued pursuant to the statute, see G. L. c. 272, s. 99 D 1 d. The statute is carefully worded and unambiguous, and lists no exception for a private individual who secretly records the oral communications of public officials.

We have no doubt that the plain language of the statute accurately states the Legislature's intent. The Report of the Special Commission on Electronic Eavesdropping, 1968 Senate Doc. No. 1132, at 6, confirms that the statute's strict prohibition of all secret recording by members of the public grew out of concern over the commercial availability of electronic devices capable of intercepting wire or oral communications, and the recognition that there was no way effectively to prohibit the sale or manufacture of these devices. These concerns led the commission to revise the prior version of the statute, which had allowed secret recording on private premises, see G. L. (Ter. Ed.) c. 272, s. 101 ("nothing contained [herein] shall render it unlawful for any person to install and use such a device on premises under his exclusive control"), repealed by St. 1968, c. 738, s. 5, to "strictly prohibit [the public from] electronic

Page 599

eavesdropping and wiretapping of other persons' conversations without permission." 1968 Senate Doc. No. 1132, at 9.

In addition, until the 1968 amendments, the law had permitted the recording of one's own conversations, or conversations with the prior permission of one party (traditionally known as "one-party consent"). See G. L. c. 272, s. 99, as appearing in St. 1959, c. 449, s. I ("Whoever . . . secretly or without the consent of either a sender or receiver . . ."). The commission revised the statute generally to disallow recordings made with one-party consent, thus rejecting the prevalent approach taken by other States, and by the comparable Federal electronic surveillance statute, that generally permitted wiretapping and eavesdropping in cases of one-party consent. See Commonwealth v. Thorpe, 384 Mass. 271, 280 n.7 (1981), cert. denied, 454 U.S. 1147 (1982) (examining Legislature's decision in 1968 amendments to allow some warrantless surveillance by law enforcement officers, but limiting the reach of one-party consent to interception of offenses in connection with organized crime). The commission clearly designed the 1968 amendments to create a more restrictive electronic surveillance statute than comparable statutes in other States [Note 5]. See Commonwealth v. Jackson, 370 Mass. 502, 506 & n.6 (1976). We conclude that the Legislature intended G. L. c. 272, s. 99, strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting

Page 600

with members of the public, when made without their permission or knowledge.

We reject the defendant's argument that the statute is not applicable because the police officers were performing their public duties, and, therefore, had no reasonable expectation of privacy in their words. The statute's preamble expresses the Legislature's general concern that "the uncontrolled development and unrestricted use of modern electronic surveillance devices pose[d] grave dangers to the privacy of all citizens of the commonwealth" and this concern was relied on to justify the ban on the public's clandestine use of such devices. G. L. c. 272, s. 99 A. See Commonwealth v. Gordon, 422 Mass. 816, 833 (1996). While we recognize that G. L. c. 272, s. 99, was designed to prohibit the use of electronic surveillance devices by private individuals because of the serious threat they pose to the "privacy of all citizens," the plain language of the statute, which is the best indication of the Legislature's ultimate intent, contains nothing that would protect, on the basis of privacy rights, the recording that occurred here [Note 6]. In Commonwealth v. Jackson, supra at 506, this court rejected the argument that,

Page 601

because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim's brother would not be prohibited under G. L. c. 272, s. 99: "[W]e would render meaningless the Legislature's careful choice of words if we were to interpret 'secretly' as encompassing only those situations where an individual has a reasonable expectation of privacy." Id [Note 7].

The defendant concedes the restrictive nature of the statute's language, but urges us, nevertheless, to recognize an exception to the statute's prohibition. In support of his request, the defendant cites Commonwealth v. Gordon, supra at 832-833, where this court held that G. L. c. 272, s. 99 P, which allows a criminal defendant to move to suppress evidence obtained in violation of G. L. c. 272, s. 99, does not prohibit a judge from allowing in evidence routine administrative recordings of a defendant's booking procedure following an arrest. That decision, however, dealt primarily with the admissibility of a secret recording as evidence, and not with whether a violation of the statute had occurred. Moreover, the defendant cannot claim that his recording was made as a routine, administrative procedure, when the record indicates that he recorded the officers' words fully intending to use the recording as proof in his subsequent complaint of police misconduct [Note 8].

The defendant argues that his prosecution was tantamount to

Page 602

holding him criminally liable for exercising his constitutional rights to "petition [the government] for redress of his grievances and to hold police officers accountable for their behavior." This argument has no merit. The defendant freely exercised his right to petition by filing his complaint of police misconduct with the Abington police department. An internal investigation was conducted pursuant to his complaint, which included, according to the trial testimony of the officer in charge of the investigation, a review of the defendant's tape of the encounter. The defendant was not prosecuted for making the recording; he was prosecuted for doing so secretly.

The dissent reaches its conclusion by ignoring the unambiguous language and definitions of the statute and by relying on purported (and dubious) legislative history. The dissent suggests that the defendant's secret recording of the words of the police officers should be lawful, because such recording may tend to hold police officers accountable for improper behavior. Implicit in the dissent's position is the even broader suggestion that police officers routinely act illegally or abusively, to the degree that public policy strongly requires documentation of details of contacts between the police and members of the public to protect important rights. We doubt the validity of the dissent's major premise, and we are not convinced that the widespread clandestine recording of encounters between individuals and police officers would be desirable or even efficacious [Note 9]. Nor do we think, as the dissent does, that police officers should be

Page 603

singled out for particular approbation to safeguard the integrity of the "Republic." Post at 612-613. Followed to its logical conclusion, the dissent would encourage drug manufacturers to mount hidden video cameras in their facilities so they can capture the moment of truth when the police execute a search warrant and would authorize drug dealers secretly to tape record conversations with suspected undercover officers or with informants in order to protect the dealers' rights against hypothetical police abuse. Numerous other examples exist. The point is an obvious one. Every police encounter would be available for secret recording; even meter maids would not be spared. The value of obtaining probative evidence of occasional official misconduct does not justify a failure to enforce the clear terms of the statute. See Commonwealth v. Blood, 400 Mass. 61, 74 (1987), and cases cited.

Further, if the tape recording here is deemed proper on the ground that public officials are involved, then the door is opened even wider to electronic "bugging" or secret audio tape recording (both are prohibited by the statute and both are indistinguishable in the injury they inflict) of virtually every encounter or meeting between a person and a public official, whether the meeting or encounter is one that is stressful (like the one in this case or, perhaps, a session with a tax auditor) or nonstressful (like a routine meeting between a parent and a teacher in a public school to discuss a good student's progress). The door once opened would be hard to close, and the result would contravene the statute's broad purpose and the Legislature's clear prohibition of all secret interceptions and recordings by private citizens. See Commonwealth v. Thorpe, supra at 279 ("the Legislature proceeded on the premise that electronic surveillance is anathema except within certain narrowly prescribed boundaries"). See also Commonwealth v. Gonzalez, 426 Mass. 313, 315 (1997); O'Sullivan v. NYNEX Corp., 426 Mass. 261, 263 (1997); Commonwealth v. Blood, supra at 66. Despite efforts to circumscribe its holding, the dissent, by logical

Page 604

extension, would permit the untrammeled interception of communications by legislators, executive officers and agents, judicial officials, municipal officers, among others, on the erroneous supposition that public accountability requires the practice. It is not our function to craft unwarranted judicial exceptions to a statute that is unambiguous on its face, and, particularly, not to attempt to do so by subjecting police and public officials to sinister accusations or by evoking unwarranted fears that legitimate interests of the media may be harmed by the statute. See Commonwealth v. Thorpe, supra at 279-280 [Note 10]

Finally, some comment is in order on the dissent's appeal to the now-famous Rodney King videotape, recorded in Los Angeles, California, by George Holliday on March 3, 1991, post at 606-607. The appeal intersects emotional rhetoric into what should be a straightforward matter of statutory interpretation. The California electronic surveillance statute prohibits only the recording of "confidential communication," and excludes "communication made in a public gathering . . . or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded," Cal. Penal Code s. 632 (a) and (c) (West 1999), and, therefore, would have no application to Holliday's videotape. As discussed above, however, our Legislature chose not to follow those States whose statutes prohibit wiretapping or secret electronic recording based on privacy rights. See

Page 605

notes 5 and 6, supra. "If the Legislature had intended to [prohibit only secret recording where an individual has a reasonable expectation of privacy], the statute would have been written in terms similar to those used in the California eavesdropping statute . . . . Rather, it is apparent from the Report of the Special Commission on Electronic Eavesdropping, 1968 Senate Doc. No. 1132, that the legislative intent was to impose more stringent restrictions on the use of electronic surveillance devices by private individuals than is done in other States." Commonwealth v. Jackson, 370 Mass. 502, 506 (1976). There is no basis to ignore the plain language and legislative history of G. L. c. 272, s. 99, or our case law interpreting it, in favor of speculation as to how an imaginary scenario might have played out, had the Rodney King episode occurred in Massachusetts and not in California [Note 11].

The problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight [Note 12]. Had he done so, his recording would not have been secret, and so would not have violated G. L. c. 272, s. 99. See Commonwealth v. Jackson, supra at 507 (no "interception" when defendant was aware his voice was being recorded). Secret tape recording by private individuals has been unequivocally banned, and, unless and until the Legislature changes the statute, what was done here cannot be done lawfully.

Judgments affirmed.

Page 606

MARSHALL, C.J. (dissenting, with whom Cordy, J., joins). In the early morning hours of Sunday, March 3, 1991, George Holliday was awakened by a commotion outside his apartment. From his window he saw an African-American man being beaten by uniformed police officers. Holliday did more than watch. He recorded on videotape (with sound) the officers' clubbing the man with fifty-six baton strokes, and kicking him viciously about the head and body [Note Dissent-1]. The graphic videotape of the arrest of Rodney King was subsequently viewed on television by millions of Americans, causing a public outcry and leading to a comprehensive investigation of the use of excessive force by the Los Angeles police department. The videotape also served as the catalyst for the formation of The Christopher Commission, established to investigate the incident. The commission concluded that police misconduct was a serious problem within the department, and that major reform efforts were needed. The commission wrote of the importance of the Holliday videotape:

"Our Commission owes its existence to the George Holliday videotape of the Rodney King incident. Whether there even would have been a Los Angeles Police Department investigation without the video is doubtful, since the efforts of King's brother . . . to file a complaint were frustrated, and the report of the involved officers was falsified [Note Dissent-2]."

The videotaped events occurred in Los Angeles. Had they occurred in Massachusetts, under today's ruling Holliday would have been exposed to criminal indictment rather than lauded for

Page 607

exposing an injustice [Note Dissent-3]. That can be the result only if the Legislature intended the criminal statute, G. L. c. 272, s. 99, to apply in these circumstances. It did not. I therefore respectfully dissent.

There is nothing in the legislative history of the wiretapping statute, G. L. c. 272, s. 99, in the preamble to the legislation, or in the language of the statute that compels the result reached by the court today. The legislative history makes clear that the intent of the statute, as amended in 1968 [Note Dissent-4], is twofold. First, the amendments were designed to authorize and to regulate the government's use of wiretaps and other surveillance devices. See Interim Report of the Special Commission on Electronic Eavesdropping, 1968 Senate Doc. No. 1132, at 1-2 (1968 Report) (commission "desires close judicial supervision over all aspects of the process of eavesdropping and wiretapping as it is performed by law enforcement officers"). Supervision of governmental surveillance and eavesdropping was viewed as necessary to "eliminate the possibility of abuse and add to the public's confidence in the manner in which this statute is employed by law enforcement officials." 1968 Report at 8.

Second, the amendments were intended to protect the privacy of citizens by regulating nongovernmental "surveillance," particularly in two circumstances identified by the Special Commission as posing serious risks to that privacy: (i) the Legislature was concerned about the newly discovered practice of private telephone companies' eavesdropping on the conversa-

Page 608

tions of its private customers [Note Dissent-5]; and (ii) the commission heard evidence that new technology had made "eavesdropping devices" or "bugs," such as subminiature transmitters, "readily available" to "private investigators" and "private parties." Even if detected, the commission cautioned, "one can never learn the identity of the eavesdropper." Interim Report of the Special Commission on Electronic Eavesdropping, 1967 Senate Doc. No. 1198 at 3 (1967 Report). The commission recommended that, to protect the privacy of citizens, individuals be prohibited from using these "wiretapping and eavesdropping devices" to record their private conversations [Note Dissent-6]. There is no hint in the legislative history that the Legislature contemplated the circumstances at issue in this criminal case: the tape recording of an encounter on a public way between a citizen and a police officer engaged in his official duties [Note Dissent-7].

The 1968 amendments to the wiretapping statute, St. 1968,

Page 609

c. 738, s. 1, at issue here, were enacted shortly after the special commission's report, and reflect these same two purposes. First, the statute authorized the police to engage in secret electronic surveillance of citizens suspected of organized crime: The statutory preamble notes that "[n]ormal investigative procedures are not effective" in combating the "increasing activities of organized crime" and that "law enforcement officials must be permitted to use modem methods of electronic surveillance . . . when investigating these organized criminal activities." Id [Note Dissent-8].

Second, the Legislature noted that the "uncontrolled development and unrestricted use of modem electronic devices" posed grave dangers to the "privacy of all citizens of the commonwealth." With these twin objectives in mind, the Legislature placed substantial restrictions on "surveillance" and "eavesdropping" by government officials. See Commonwealth v. Gordon, 422 Mass. 816, 833 (1996) ("It is apparent from the preamble that the legislative focus was on the protection of privacy rights and the deterrence of interference therewith by law enforcement officers' surreptitious eavesdropping as an investigative tool"). The Legislature also restricted "surveillance" and "eavesdropping" by private individuals to protect those same privacy interests. See Commonwealth v. Jackson, 370 Mass. 502, 507 (1976) (statutory language and legislative policy of "protecting the privacy of our citizens"). To that end the Legislature both prohibited "interceptions," and provided a

Page 610

civil remedy for any person "aggrieved" by such "interceptions," described by the Legislature as one who "ha[s] standing to complain that his . . . privacy was invaded in the course of an interception." G. L. c. 272, s. 99 B 6 and Q. The legislative intent as reflected in the statutory language is explicit: to protect the privacy interests of citizens. While the statutory language enacted to accomplish these purposes can be broadly read, there is no suggestion that the Legislature had in mind outlawing the secret tape recording of a public exchange between a police officer and a citizen.

The criminal conviction of Michael Hyde is (apparently) the first time that a citizen of Massachusetts has been convicted because he tape recorded an exchange with a police officer performing an official function in a public place in the presence of a third party, potentially within the sight and hearing of any passerby [Note Dissent-9]. Now to hold, as the court does, that a police officer possesses a privacy interest in statements he makes as a public officer effectuating a traffic stop sets the jurisprudence of this Commonwealth apart from all others.

Many States have wiretapping statutes similar to the one enacted in 1968 in Massachusetts [Note Dissent-10]. In only one reported decision has a State attempted to indict a citizen in circumstances similar to those in this case. The attempt was summarily rejected. In State v. Flora, 68 Wash. App. 802 (1992), the court overturned a conviction obtained in circumstances nearly identical to these and under a wiretapping statute similar to the one at issue here. The Flora court rejected as "wholly without merit" the view now adopted by this court. Id. at 806. The court "decline[d] the State's invitation" to transform its wiretapping

Page 611

statute "into a sword available for use against individuals by public officers acting in their official capacity." Id. at 808 [Note Dissent-11].

This court's attempt to distinguish State v. Flora, supra at 610, as "inapposite" because the "Washington electronic surveillance statute prohibits only the secret recording of private conversations" is not persuasive. Ante at 600-601 n.6 [Note Dissent-12]. Like its Washington counterpart, the Massachusetts statute protects, as it was intended to, the privacy of citizens. See G. L. c. 272, s. 99 B 6 ("aggrieved person" is one whose "privacy was invaded in the course of an interception "). [Note Dissent-13] Both the language of the

Page 612

statute and its legislative history make clear that the Legislature was concerned only with protecting the secret recording of conversations in which there was a legitimate expectation of privacy. None exists here.

The purpose of G. L. c. 272, s. 99, is not to shield public officials from exposure of their wrongdoings. I have too great a respect for the Legislature to read any such meaning into a statute whose purpose is plain, and points in another direction entirely. Where the legislative intent is explicit, it violates a fundamental rule of statutory construction to reach a result that is plainly contrary to that objective. See Commonwealth v. Gordon, supra at 832-833 (court declined to read wiretapping statute "literally" in "absence of more specific statutory language" that broad definition of interception outlawed unconsented audiotaping of booking procedures, noting that "in light of the preamble, we are unwilling to attribute that intention to the Legislature"). See Commissioner of Pub. Works v. Cities Serv. Oil Co., 308 Mass. 349, 360 (1941) (statutes are to be interpreted "in the light of the Constitution and of the common law, to the end that they be held to cover the subjects presumably within the vision of the Legislature" and "be not stretched" to "comprehend matters not within the principle and purview on which they were founded"). "The public has an interest in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector o Lynn, 377 Mass. 151, 158 (1979). To hold that the Legislature intended to allow police officers to conceal possible misconduct behind a cloak of privacy requires a more affirmative showing than this statute allows.

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. See Rotkiewicz v. Sadowsky, 431 Mass. 748, 754 (2000) (recognizing importance of "public discussion and public criticism directed toward the performance" of police officers). Their role cannot be performed if citizens must fear criminal reprisals when they seek to hold government officials responsible by recording - secretly recording on occasion - an interaction between a citizen and a police officer.

Page 613

The court suggests, ante at 602-603, that a different reading would permit "untrammeled interception of communications" of government officials by everyone and anyone. That concern is misplaced. 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 [Note Dissent-14]. We hold police officers to a higher standard of conduct than other public employees, and their privacy interests are concomitantly reduced. See, e.g., O'Connor v. Police Comm'r of Boston, 408 Mass. 324, 328-329 (1990) ("public confidence in the police is a social necessity and is enhanced by procedures that deter [unlawful police conduct]"); Broderick v. Police Comm'r of Boston, 368 Mass. 33, 42 (1975), quoting Gardner v. Broderick, 392 U.S. 273, 277-278 (1968) (police officer "is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer"). We hold officers to this higher standard of conduct, fully confident that, in most cases, they will meet that standard, and there is no "implicit" suggestion to the contrary. Ante at 602. It is the recognition of the potential for abuse of power that has caused our society, and law enforcement leadership, to insist that citizens have the right to demand the most of those who hold such awesome powers [Note Dissent-15].

The court's ruling today also threatens the ability of the press - print and electronic - to perform its constitutional role of watchdog. As the court construes the Massachusetts wiretapping statute, there is no principled distinction to explain why members of the media would not be held to the same standard

Page 614

as all other citizens. See, e.g., Associated Press v. NLRB, 301 U.S. 103, 122-133 (1937) ("The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others"). See also Branzburg v. Hayes, 408 U.S. 665, 682 (1972) ("It is clear that the First Amendment [to the United States Constitution] does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability"). The statute, on its face, makes no exception for members of the media or anyone else. Had Michael Hyde, the defendant in this case, been a news reporter he could have faced the same criminal consequences that the court now sanctions [Note Dissent-16]. If the statute reaches actions by police officials acting in their public capacities in the plain view of the public, the legitimate news gathering of the media is most assuredly implicated.

I would reverse the conviction.