The Supreme Judicial Court today dismissed Somerville Mayor Joe Curtatone's lawsuit against a New York blog and one of its writers under the state wiretap law, because the guy asked if he could record a phone "interview" with Curtatone, and the wiretap law only bars "secretly" recorded conversations.
Curtatone had argued he never would have talked with Kirk Minihane if he had known the guy on the other end of the phone was Minihane because Minihane works for Barstool Sports, whose owner, failed one-time Boston mayoral candidate David Portnoy, had called Curtatone and his family a bunch of rapists, arsonists and extortionists after Curtatone had criticized the Bruins for handing out Barstool towels before a game. Because Minihane concealed his true identity, Curtatone argued, the recording was, in fact, done "secretly" because his identity was a secret.
But the state's highest court said the key thing under the wiretap law is not whether Minihane was lying about who he was when he called Curtatone pretending to be Globe columnist Kevin Cullen, but whether Curtatone knew he was being recorded. And since "Cullen" asked out the outset whether he could record the conversation and Curtatone agreed, it was, legally, match over for the mayor, the court ruled.
According to the court's summary of the case:
Minihane interviewed Curtatone via telephone on June 6, 2019. Minihane altered his normal speaking voice to sound like Cullen and maintained throughout the interview that he was Cullen. At the beginning of the call, Minihane asked Curtatone for his consent to "record" the interview,and Curtatone consented. Minihane audio-video recorded his side of the conversation. Barstool Sports then posted the recording on its blog.
The court noted that the legislature did not define "secretly" in the law, so it had to turn to sources such as Merriam-Webster's Collegiate Dictionary (11th edition, 2020) and Black's Law Dictionary (11th edition, 2019), which indicate "that the act of hearing or recording is that which must be done secretly in order for the interception to fall within the prohibited activity."
The court concluded that:
Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather,it is the act of hearing or recording itself that must be concealed to fall within the prohibition against "interception" within the act. See Jackson, 370 Mass. at 507-508 (telephone calls permissibly recorded under act where, contrary to defendant's beliefs, victim's brother made recordings, rather than police). See also Commonwealth v. Hyde, 434 Mass. 594, 603-605(2001) (countenancing no violation of act where recording party simply informs those involved of intention to tape record encounter, or even holds tape recorder in plain sight, regardless of identification). The recording at issue was not made secretly and, therefore, there was no interception under the act.