Colin Zick of Foley Hoag writes:
The First Circuit’s recent opinion in Project Veritas Action Fund v. Rollins, upheld a challenge to the Massachusetts anti-wiretap law, Mass. Gen. Laws ch. 272, § 99, carving out an exception for certain activity protected by the First Amendment. The opinion begins:
Massachusetts, like other states concerned about the threat to privacy that commercially available electronic eavesdropping devices pose, makes it a crime to record another person’s words secretly and without consent. But, unlike other concerned states, Massachusetts does not recognize any exceptions based on whether that person has an expectation of privacy in what is recorded. See Mass. Gen. Laws ch. 272, § 99 (“Section 99”). As a result, Massachusetts makes it as much a crime for a civic-minded observer to use a smartphone to record from a safe distance what is said during a police officer’s mistreatment of a civilian in a city park as it is for a revengeseeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse. The categorical and sweeping nature of Section 99 gives rise to the important questions under the First Amendment to the United States Constitution that the challenges that underlie the consolidated appeals before us present.
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