"Stop enabling Barstool's shit"

Dave Brown, a writer for the Concord Monitor who is also a lawyer, is calling bullshit.



His argument is that the issue isn't consent to be recorded, but knowledge of being recorded, which the mayor did have.

I have to agree with a point he made in another tweet, the complaint is filed with extraneous bullshit about Barstool that is irrelevant and designed to make the company look bad.

 

Give Portnoy time. He'll make Barstool look bad all by himself.

 

That extraneous stuff is pretty normal in complaints, I think. Ontario is a no-fault divorce province, so why you broke up has no material effect on anything. I've sat in that court and you still better believe that everyone points out the bad shit the other person did just in case it helps sway the judge when it comes to whatever actual legal decisions he's making.

 

But doesn't it matter *who* is doing the recording? Like, I'm way more willing to let my niece record me for a school assignment, vs. TMZ recording me for whatever reason. I'd imagine that the mayor's lawyer will argue that the mayor couldn't properly give consent if the recorder was lying about his identity to begin with.

 

No, that is Dave Brown's point. Consent to be recorded isn't the issue; knowledge that you are being recorded is the issue. A person can give consent on a fraudulent basis, but having knowledge of being recorded cannot be fraudulently obtained. Consent is personal and involves the recorded person's intent. Knowledge is objective and does not involve whether somebody wanted something. "Do you want to be recorded?" is different from "You are being recorded."

 

The complaint specifically says the recording violated MGLA 272 section 99, which pertains to secret recordings. The recording was not secret. He thought he was being recorded by a news organization and, even if he hadn't consented, it would be allowed under Massachusetts law because he was aware of the recording.

For all I know, there may be a law on the Massachusetts books that prohibits the impersonation of someone else to obtain a recording, but the complaint does not cite one.

Obviously, this is completely unethical and Barstool continues to earn its lowly reputation among the dregs of sports media, but it doesn't appear to be illegal.

 

Brown has posted some case law on the issue.


BOYARSKY, COMMONWEALTH vs., 452 Mass. 700

and I can't find the other one now.

From the quick look at it, it's a poorly written statute in my view. Its intent is clearly to legalize police wiretaps, but it extends to non-law enforcement individuals recording each other. I don't know whether the standard should be the same, but writing separate statutes for these different circumstances seems better.

 

*is already making Barstool look bad all by himself.

 

I only regret that I have but one like to give for this photo.

 

That tip jar needs to buy an apostrophe.

 

You're prawn about that.