Monday, June 14, 2021

Interception: View From The Barstool

The Massachusetts Supreme Judicial Court has affirmed the dismissal of a civil complaint filed by the Mayor of Somerville against defendants who had recorded a conversation with his permission but by impersonating a friend

We summarize the factual allegations set forth in the complaint. On May 29, 2019, the Boston Herald, a Boston daily newspaper, published an article criticizing the Boston Bruins hockey team and the National Hockey League for distributing Barstool Sports promotional towels to attendees in advance of a professional ice hockey game in Boston. Barstool Sports is a corporation doing business in the Commonwealth that operates a blog with "a reputation for publishing crass content." Two days later, [plaintiff] Curtatone posted a statement on his social media Web page criticizing the Bruins' association with Barstool. He wrote, "As a fairly rabid sports fan one of the more regrettable things I've seen is the attempt to disguise misogyny, racism & general right-wing lunacy under a 'sports' heading. Our sports teams & local sports fans need to push back to stress that's not for us. . . ." In response to Curtatone's statement, Barstool's president, David Portnoy, accused Curtatone of being a "professional" and "legitimate" criminal on Portnoy's own social media Web page. Using the same social media platform, Portnoy also accused Curtatone's family of engaging in rape, extortion, stabbing, and arson.

In light of this public dispute, Barstool employee Minihane attempted to interview Curtatone, identifying himself using his real name and affiliation, but he was unsuccessful. Minihane then contacted a Somerville public information office employee, falsely identifying himself as Kevin Cullen, a reporter for the Boston Globe, the city's largest daily newspaper, and asked to interview Curtatone. Curtatone agreed to an interview with Cullen, unaware that the interviewer would actually be Minihane.

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.

No violation of the statute at issue

With these definitions and this context in mind, it is readily apparent that the plaintiff's arguments are foreclosed by the plain meaning of the act. 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.

...Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an "interception" within the meaning of the Commonwealth's wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

(Mike Frisch)

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