Monday, July 6, 2009

Nesson 'unaware' of Mass. anti-taping law; calls statute 'gobbledygook' and 'outrageously unconstitutional'

David Kravets of Wired spoke today with Harvard Law School Professor Charles Nesson about the record labels' motion seeking sanctions against him for his "disruptive and illegal" practice of recording plaintiffs' counsel and posting the results to the Internet. Nesson denied that he was doing anything illegal, and said he didn't know about the statute, Massachusetts General Law, Chapter 272, Section 99, which makes it a felony, punishable by up to five years in state prison, to record conversations without the consent of all parties, or to "disclose" such recordings:
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.


  1. He's almost certainly arguing 6th amendment unconsitutionality of the statute. The machinery of the status quo seems intent on grinding him down. Whether rightly so or not is a question you've completely avoided answering by focusing in on accepted norms. It probably is rightly so, but it'd make an interesting discussion. Sort of like the coach who intentionally commits a technical foul because of the corrupt way a basketball game is being called, it's not exactly a clear moral question.

  2. On re-reading that comment, I wanted to clarify that I don't mean to suggest a true analogy in that I'm not suggesting that Judge Gertner is corrupt. She has in every way that an unqualified man such as I can tell seemed incredibly patient and professional.

  3. Ben 2:15 -

    I absolutely HAVE to hear this: How do you assume the 6th Amendment (which only applies in criminal cases) renders this local stature prohibiting recording unconstitutional?

  4. Just to be clear: the "Ben" of 2:15 and 3:49 is NOT Ben Sheffner, the author of this blog. In fact, if "Ben" comments again (which he is welcome to do), I'd appreciate if he could add an initial to avoid confusion. Thanks.

  5. Ben, my initial is S, so I'm not sure that'd help. I'll make it a point to sign my posts. I don't know how to make my full name appear in the header.

    In any case, anonymous, I wasn't suggesting that Nesson is right. His position is clearly out there, but if you look back to his comments on the internet broadcast of the trial he's made several claims that were based on his clients right to a public trial.

    I think there is a reasonable argument that the sixth amendment should apply though. While this is a "civil" case, that may well be an end run around a whole bunch of rules by the Congress. As a practical matter this isn't a civil dispute over rights, it's a contention of theft by copyright infringement. If you steal my car, I don't sue you to get you punished. But in the intellectual property arena that is how it works.

    I'm not a Constitutional scholar nor a historian so I don't know the answer to this, but I find it hard to believe that it was actually by intent that in a civil suit you can be constitutionally denied a quick trial, a public trial, not be informed as to the nature of the charge, not be able to compel witnesses, nor be able to engage legal counsel. I suspect that rather, they didn't anticipate the pseudo-civil criminal proceedings of our day.

    --Ben Sauer

  6. Bartnicki v Vopper. The only difference is that MA appears to be a 2-party consent law, rather than the 1-party required under federal law. Perhaps that makes a 1A difference; haven't thought it through. However, if it doesn't make a difference, counsel has 'splainin to do. I'd be willing to bet, though, that it's going to be hard to find two (or five) federal judges to hold that the 1A requires every individual to be taped either unknowingly or knowingly but without their consent.

    I have to say I'm not seeing the 6A position. The confrontation clause is criminal, not civil. It states: in all criminal prosecutions, the accused shall enjoy the be confronted with the witnesses against him.

    Nesson may think this is a criminal prosecution. I may think pigs can fly, but that don't make it so...

  7. I think that Nesson has done is just brilliant. Basically his behaviour allows him to appear to the uneducated masses on the net as a victim of persecution by "the man" while simuiltaneously deflecting attention from the vacuity of his substantive arguments in the main case.

  8. The case against Nesson's client might be civil, but a putative case against Nesson himself for violating the MGL would be a criminal one. As I read the MGL, it might however lead to civil damages against Nesson ... except that as the law is written he might escape its ambit altogether, for a variety of reasons.

  9. ok get a grip. We cannot even record 911 calls in MA without waying "this line is being recorded'. If the EMT is in the Ambulance working on a paitent and calling a designated line from the ambulance to the ER they still have to hear 'this line is being recorded'. That's been MA law for a long time. If we are not overriding it to save seconds that could save lives, I doubt we'd overide it for anything else.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.