It began three years ago in an ugly encounter between a motorist and the police. It ended earlier this summer in a dreadful opinion by the Massachusetts Supreme Judicial Court. And as the noted civil-liberties lawyer Harvey Silverglate observes in a characteristically lucid essay in the National Law Journal, the case offers one more example of the “outrageous one-sidedness” that seems to kick in when courts and legislatures are called upon to weigh the privacy interests of citizens against those of government officials.
On Oct. 23, 1998, Michael Hyde was pulled over as he drove his white Porsche through Abington, Mass. The officer said he stopped him because of a noisy exhaust system. Hyde, a 31-year-old musician, suspected the real reason was that his long hair and his passenger’s leather coat fit the cop’s image of drug dealers.
His suspicion deepened when three other Abington policemen joined the first. Hyde and his friend were ordered out of the car and frisked. When one of the police asked Hyde if he had any “blow in the dash” — cocaine — he replied indignantly that he was being harassed because of his long hair. The officers responded with vulgarities. Spotting a plastic bag near the front seat, the police seized it and looked inside. (It contained CDs.)
In the end, the police let Hyde go with a warning. What they didn’t know was that he had captured the entire confrontation on a hand-held tape recorder. A few days later, Hyde took his tape to the Abington police station and formally complained of the way he’d been treated. He probably wasn’t surprised when the police department cleared its men of any wrongdoing. But he must have been shocked when the police turned the tables and pressed criminal charges against him — for unlawful wiretapping.
Hyde was found guilty, and the case went up to the state’s highest court, which affirmed, 4-2. This was surely something new under the sun: A citizen convicted of criminal wiretapping because he recorded his own exchange with the police — an exchange that took place in public, in broad daylight, in the presence of a witness, and in plain view of anyone who might have been walking or driving by.
The majority reasoned that the Massachusetts anti-wiretapping statute contains no exception for recording policemen in the performance of their official duties. But as Chief Justice Margaret Marshall observed in her biting dissent, if logic like that had been applied in California, it would have condemned George Halliday — the man who videotaped the beating of Rodney King — to criminal indictment.
When the Legislature enacted the anti-wiretapping law, Marshall wrote, it surely didn’t intend “to shield public officials from exposure of their wrongdoings.” Its purpose was to address a specific concern, one plainly stated in the law’s preamble: “The … unrestricted use of modern electronic surveillance devices pose[s] grave dangers *to the privacy of all citizens of the commonwealth.*” The law was passed, in other words, to protect speakers with a legitimate expectation of *privacy*. That would scarcely seem to apply to a policeman engaged in stopping and questioning — and perhaps harassing — a driver.
It’s bad enough to be cloaking government agents in privacy protections they have no right to expect. Far worse is to be stripping away such protections from citizens who do have the right to expect them.
Are you going to Tampa any time soon? You might want to steer clear of the popular Ybor City nightlife district — unless you don’t mind being under permanent police surveillance, even when all you’re doing is getting a bite or taking a walk with your spouse. Tampa police have installed 32 high-tech cameras equipped with face-recognition technology — the better, they say, to be able to pick any of 30,000 wanted felons out of a crowd.
At least that’s what they say today. Maybe tomorrow they’ll say they are looking for runaway children. Or undocumented immigrants. Or deadbeat dads. Maybe they’ll just say they’re scanning for “troublemakers” and not really encourage a whole lot of questions.
Tampa’s high-tech cameras got an unpublicized tryout at the Super Bowl in January, when the faces of 100,000 fans passing through the turnstiles were automatically checked against a database of criminals. Now the cameras are up in Ybor City. Virginia Beach, Va., is considering doing the same. Perhaps your town will follow suit.
But when did you — when did any of us — agree to take part in a permanent police lineup? Granted, our expectation of privacy is reduced when we are in public, but that hardly entitles the government to monitor and record our every move. Or does it? As Big Brother acquires the technical power to keep us under permanent scrutiny, *is* there any expectation of privacy? And when push comes to shove, is it our privacy that the courts will protect — or his?
