Secret MA State Police Recordings Violate State, Federal Laws: Lawsuit

FITCHBURG, MA — A potential class-action lawsuit filed last week says Massachusetts State Police troopers secretly recorded nearly 200 people, a large scale violation of federal and state law that may endanger criminal cases across the state.

The lawsuit was filed Thursday against state police and Motorola, and says that troopers violated the state's two-party consent law when they recorded interactions with at least 181 people who were arrested, and then violated their civil rights by failing to disclose the recordings in court.

"In at least one hundred eighty-one known situations, MSP brought criminal charges against the plaintiffs and failed to produce these secret audio recordings. Plaintiffs were denied constitutional due process prior to the resolution of their cases. While Plaintiffs have now discovered that these secret recordings have existed since approximately 2017, the existence of these secret recordings was not disclosed to plaintiffs until March 2023," the lawsuit said.

The lawsuit was filed on behalf of three Fitchburg residents and a Gardner man whose conversations with troopers were recorded and added to a database maintained by Callyo, a law enforcement software company acquired by Motorola in 2020.

The state wiretapping law prohibits recording audio of another person without their consent. The wiretapping law allows police to record conversations related to organized crime investigations, but none of the plaintiffs were organized crime suspects, according to the suit.

Troopers involved in the recordings testified at court hearings in late 2023 that they received little to no training on how Callyo worked. Those hearings also included the disclosure of a state police audit of cases where Callyo was used. A PowerPoint presentation given to public defenders through a public records request summarized the audit findings, and backed up testimony from troopers.

“Many recordings were made outside of legal parameters governing surreptitious audio recordings in Massachusetts,” the PowerPoint said. “Callyo products do not always make it clear to the user whether an event is being recorded or merely livestreamed.”

During a November court hearing, Worcester County prosecutors told a judge that the audit itself was sent to every district attorney in the state, detailing criminal cases where a secret Callyo recording might have been made.

At a January court hearing, a retired state trooper who administered the department's Callyo system told a defense attorney that the software installed on troopers' phones defaulted to record audio, largely because Callyo operated in many other states that don't have two-party consent laws like Massachusetts. The retired trooper also testified that the software came with a feature called "Body Bug," where a trooper's phone could transmit audio without being visibly on. Other troopers could listen to that audio feed, according to the testimony.

A Callyo sales person told a group of troopers during a call in 2017 that they could turn the default setting off to comply with the two-party consent law. But with no one to formally train troopers who used Callyo, that information was never explicitly passed on.

"In the units, like if it was a new guy that came into a unit, there were guys that had already had accounts for, you know, six months, a year, and they would say I just need the account. So, and so [will] show me how to use it," he testified about his time setting up Callyo accounts.

The lawsuit also accuses state police of violating civil rights beyond the recordings. According to the suit, troopers routinely gave monetary "tips" to informants who made drug buys as part of larger investigations. Informants were required to leave their cell phones with troopers while making the buys, leading to illegal searches of their phones, according to the suit.

"MSP had a custom, pattern, practice, and/or procedure of using these illegally and unreasonably obtained contacts to threaten, intimidate, or coerce them to purchase alleged controlled substances," the suit said.

The lawyers who filed the suit, led by Fitchburg criminal defense attorney Christopher Batinsey, are seeking class status for the people who were recorded. The attorneys want compensation — including legal costs and fines — for anyone who may have been involved, and the appointment of a special master to oversee the case.

The lawsuit follows other recent scandals involving state police: a federal criminal case brought against a group of state troopers in January alleging a bribery scheme involving commercial driver's license applicants; an overtime fraud scheme that took place between 2015 and 2017; and two troopers involved convicted on federal fraud charges in late 2023 after they fabricated overtime hours while attending programs funded by federal grants.