The wiretapping statute makes it a crime to secretly audio-record other people, however, police in Boston and other parts of the state have arrested people under the law even when their recordings were not made secretly.
The Boston Police Department created the training video while they were being sued by Simon Glik, an attorney who was arrested for recording three police officers arrest a man on the Boston Common in 2007.
When Glik was arrested, the 2001 Supreme Judicial Court case Commonwealth v. Hyde had already made it clear that it was legal to audio-record police without their consent, but the Boston Police Department stood behind the three officers who arrested Glik anyway.
The attorney representing the three officers argued that Glik's lawsuit should have been dismissed because the officers who arrested Glik were entitled to "qualified immunity." The federal First Circuit appeals court rejected this argument, ruling in 2011 that there is a clearly established right to record police activity.
"The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative," the court wrote.
In 2012, the Boston Police Department finally conceded that the officers who arrested Glik were wrong.
Later that year, the city reached a $170,000 settlement with Glik. The city also reached a $33,000 settlement with Maury Paulino, another man who was arrested and charged with wiretapping for recording Boston police.
Despite the Glik ruling and two settlements, Boston police have still tried to use the wiretapping law as an excuse to arrest people for recording them. Last year, Boston police arrested Northeastern student Tyler Welsh on a wiretapping charge. Welsh was arrested for recording Boston police officers during the celebration after the Red Sox won the World Series.
The Glik ruling has also left it uncertain whether secretly recording police and other government officials is legal.
"It's kind of regrettable that the First Circuit wasn't more specific," Peter Elikann, a Boston criminal defense attorney told The Herald News on behalf of the Massachusetts Bar Association earlier this year. "The First Circuit didn't even mention the distinction between secretive and non-secretive recordings... It basically said that at anytime in whatever fashion, citizens are allowed to record public officials carrying out their public duties."
Carlton Williams, an attorney with the American Civil Liberties Union, also told me that Glik left the issue of secretly recording police officers ambiguous. Police are still likely to arrest people for making secret recordings, "but it's unclear what [the] courts would ultimately do," Williams explained.
In Commonwealth v. Hyde, the SJC rejected the argument that on-duty police officers have no expectation of privacy and therefore the wiretapping statute does not apply to them. However, in light of the Glik decision, it's possible that the law may be struck down if someone is willing to challenge it.
The Boston Police Department has also provided us with its training bulletin on the wiretapping statute: