I have to say I was completely unaware of this Massachusetts law. When I dug into this thing, I am amazed to what it purports to be.It's not entirely clear from Wired's piece when Nesson, who is defending accused peer-to-peer infringer Joel Tenenbaum, acknowledges having learned about the law. But Judge Gertner cited the statute in her February 29, 2009 order (which I can only assume Nesson read) -- and yet he has continued his recording practices unabated through last week. At the very least since February 23 of this year, any recording he has done has been with full knowledge of the state law. And Nesson has been recording for decades (check out the pictures of tapes dated in the 1980s); surely at some point it might have occurred to him to confirm whether it was legal?
Nesson also told Wired that the Massachusetts recording law is "gobbledygook" and unconstitutional:
That is so outrageously unconstitutional that I would prefer myself to honor the United States Constitution and take my chances that recording a conversation with a judge in a federal case and opposing lawyers is somehow in violation of a Massachusetts statute that makes me a felon.Nesson does not specify which parts of the statute he considers unconstitutional. In Bartnicki v. Vopper, the Supreme Court held that the First Amendment barred suit against a radio host for broadcasting a recording that had been made in violation of federal and Pennsylvania wiretap statutes -- where the radio host himself played no role in the illegal recording. But nothing in Bartnicki suggests that the Constitution bars a civil or criminal case against the person who actually made the illegal recording. The Court did, however, acknowledge that it remains a "still-open question" "whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well. Florida Star, 491 U.S., at 535, n. 8."
In other words, I think the Massachusetts statute's prohibition on recording itself is constitutionally sound. The Supreme Court, however, has not ruled out a First Amendment challenge to a ban on the subsequent dissemination of illegally-made recordings by the person who himself did the illegal recording.