Boston Police Department Claims Contacting Its Public Affairs Number Is A Criminal Act

from the well-thank-fuck-these-people-are-in-charge-of-'enforcing-laws' dept

Most long-term Techdirt readers will be familiar with Carlos Miller, the man behind the Photography Is Not A Crime blog (usually shorthanded to simply “PINAC”). Miller, along with several other citizen photographers, have challenged local law enforcement officials repeatedly on their baseless claims that recording them is a crime.

Miller himself has been repeatedly arrested, harassed and charged with various dubious misdemeanors in an effort to curb his First Amendment rights. Now, Miller is being charged with something much more serious, thanks to the Boston Police Department’s uncontrollable urge to silence critics and shutdown photographers.

Ken White at Popehat has this handy summary of the events leading up to the BPD’s decision to charge Miller with “witness intimidation,” a felony that carries with it a possible 10-year sentence.

The story begins typically for Photography Is Not A Crime with a story about a Boston Police Department sergeant thuggishly assaulting a photographer recording a traffic stop. A PINAC fan and journalism student named Taylor Hardy called the Boston PD’s Bureau of Public Information on its public line to ask about the story. Hardy spoke with Angelene Richardson, a spokesperson for the Boston Police Department who provides information to the media and public. When Hardy published a recording of that call, the Boston Police Department arranged for him to be charged with wiretapping. Hardy claims that he informed Richardson that he was recording the call (though he did not successfully record that part of the conversation), apparently Richardson claims that he did not.

Boston’s PD has received a lot of PINAC attention lately thanks to its officers’ insistence on ignoring the outcome of the 2011 Glik decision, which saw the city pay out $170,000 to a citizen after the police wrongfully arrested him for violating the state’s wiretapping statutes by recording them in public. The decision sent a message to citizens and citizen photographers, but apparently that message has yet to reach the ears of the city’s police officers.

Now, as to the more problematic issue as to whether or not Hardy informed the BPD’s public relations person that the conversation would be recorded (Massachusetts is a two-party consent state), it ultimately shouldn’t matter.

A public relations person, whose sole purpose is to interact with the public, should assume that each and every conversation it has with citizens and journalists is being recorded — especially the latter. There’s no “expectation of privacy” inherent to public relations. Also, as Miller points out, the BPD is likely recording the calls on its end (the detective charging Miller has threatened to do the same to other callers, meaning someone’s gathering info in Boston) which would make the two-party question moot.

After being informed that the BPD was pursuing Hardy on wiretapping charges, Carlos Miller posted the following to PINAC.

Maybe we can call or email Richardson to persuade her to drop the charges against Hardy considering she should assume all her conversations with reporters are on the record unless otherwise stated. Her listed number is (617) 343-4520.

Maybe we can build up an entire collection of recorded conversations with her. After informing her, of course.

The BPD’s response to this action — Miller posting a publicly available contact number (something Miller has done dozens of times previously without issue) — was to charge him with a felony.

[T]hat led to Detective Moore filing a criminal complaint against me for witness intimidation, which I received Friday and is posted below, claiming that I caused Richardson all kinds of pain and grief because I posted her publicly available work contact info on my blog.

He also threatened to charge any readers who called her, making me think that perhaps the Boston Police Department is recording all incoming calls because how else would they gather the evidence to charge my readers for witness intimidation?

Ken White says there’s some intimidation happening here alright, but not the way the BPD imagines it.

Indeed — an act of intimidation is involved. But it’s an act of intimidation by the BPD, which is sending a clear message about how it will handle citizen dissent.

What an accomplishment: the Boston Police Department has discovered a way to make it a crime for citizens to contact the person it designates to talk to citizens.

The BPD has managed to dig itself a colossal hole in a very short period of time and it looks as if it has no interest in relinquishing its many shovels. Ordering someone from Miami (where Miller lives) to face charges in Boston over something so legally specious as declaring the posting of publicly available numbers to be “witness intimidation” is a prime example of how far some police officers will go to avoid having to admit they screwed up.

The Boston cops featured in PINAC’s multiple stories all share the same attitude — the law is whatever they declare it is, judicial decisions and the Constitution be damned. And when forced to confront the fact that they have it completely wrong, they simply ratchet up their intimidation tactics.

Defending yourself against clearly bogus charges isn’t cheap. Carlos Miller has set up an Indiegogo campaign to pay for his legal representation. He’s only seeking $2,200 ($2k for the lawyer plus $200 for indiegogo fees). Two bits of good news: 1) he’s cleared that with several hours left to go and 2) he seems to have found himself an excellent attorney.

David Duncan, a partner at [Zalkind Duncan & Bernstein LLP], will take on both Taylor Hardy’s case of illegal wiretapping and my case for witness intimidation for that price, which is much lower than he would normally charge for two felony cases.

He was referred to us by my friends at the Digital Media Law Project, which is a site every one of you should become familiar with because it contains a wealth of legal information regarding media law, which in this day and age, applies to every single one of us who uses the internet…

$2,000 is good start but expenses could increase significantly if Duncan is unable to get the case tossed.

But Duncan doesn’t come cheap. Most good attorneys don’t. He is charging $2,000 to attend the hearing on our behalf. Then he will charge $6,000 to attend three hearings after that if it does continue.

And that might not even include the actual trial, if it comes down to that. Nor does it include travel expenses.

Now, some people can find Carlos Miller’s tactics to be a bit on the aggressive side. But even those who find he somehow crosses the line in his pursuit of strengthening the First Amendment rights of American citizens have to find the above ridiculous, at the very least. This all began with BPD officers intimidating a photographer using false claims that his actions were illegal. Now, due to the BPD’s insistence on compounding its errors, a blogger in Florida is facing felony witness intimidation charges in Massachusetts.

The longer this bizarrely wrongheaded crusade against the First Amendment continues, the longer the Boston Police Dept. will have to deal with irate citizens from all over the nation contacting its public phone numbers to complain about its intimidating actions. A simple apology and an offer to drop charges would have done wonders for the PD several days ago, but now, it’s far too late. Detective Moore’s actions — basically declaring that contacting BPD’s public numbers is a criminal act — have put him and those involved in a position that only allows them to actively make things worse. The bells have been rung and no amount of additional LEO blustering will un-ring them.

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Comments on “Boston Police Department Claims Contacting Its Public Affairs Number Is A Criminal Act”

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35 Comments
Anonymous Coward says:

So let me get this straight...

They are charging someone located in Florida with wiretapping based on a Massachusetts STATE law requiring that both parties have to be informed to record a phone call? A Florida resident making an interstate phone call isn’t subject to Massachusetts state laws. Only Federal laws would be applicable in that instance which only says that one party needs to know.

Anonymous Coward says:

Re: Re: So let me get this straight...

And according to Wikipedia:

Accepted forms of notification for recording by a telephone company

The FCC defines[35] accepted forms of notification for telephone recording by telephone companies as:

Prior verbal (oral) or written consent of all parties to the telephone conversation.
Verbal (oral) notification before the recording is made. (This is the most common)
An audible beep tone repeated at regular intervals during the course of the call.

Note that the law re: verbal is not worded “consent” but “notification”.[35]

http://en.wikipedia.org/wiki/Telephone_recording_laws

So he has to tell them BEFORE he starts recording which explains perfectly why he doesn’t have the part of the conversation where he told them recorded.

art guerrilla (profile) says:

Re: So let me get this straight...

as a floridian, i happen to know our laws are all parties have to be informed a recording is being made; as a poster says below, they don’t have to ‘consent’, they just have to be ‘informed’…
presumably, if they are ‘informed’, and they choose to continue the conversation knowing it is recorded, they are effectively ‘consenting’…

IANALTDA

(i am not a lawyer thank dog almighty)

art guerrilla
aka ann archy
eof

jimb (profile) says:

It isn’t about the law, and whether the police follow it or not. Its about whether, when they charge you, you have the resour$es to fight back to keep your rights, or whether you are a typical citizen, strapped enough that you have to roll over. The law is being ignored by the police, and charges are being used to intimidate the citizenry into yielding their rights without fighting back. Thuggery pure and simple – this is an extortion of rights through abuse of authority. There’s crimes being committed, but not by the citizens.

The Real Michael says:

A person cannot legally record a phone conversation with public relations personnel, that is in the Boston Police Department’s dillusional fantasy world, yet government is using our tax dollars to purchase and mount security cameras which can record both video and audio in public areas, to say nothing of all the “private data” they intercept and store, all without our consent.

This week we honor our veteran who fought for our freedoms. What better way to pay tribute than for the BPD to stomp all over people’s rights…?

Anonymous Coward says:

the main thing to worry about now is how lawful and ‘unbias’ the judge is going to be. assuming he does as he should, the next thing to worry about is the retaliatory acts that BPD take against those in the case.

to think that this sort of thing still goes on, gives out the message that, even though it is well known to be against the Constitution, why is it not put out in as strong terms as possible by the government? i am making the assumption that they are keen to uphold the Constitution, of course.

Lurker Keith says:

You have to wonder...

With all these stories about the Police not knowing or making up laws, & apparently being unable to read nor understand THE friggin’ CONSTITUTION TO THE UNITED STATES, it makes one wonder what the Police Academies teach new cops. I always assumed those Police Academy movies were comedies, if not parodies, not what’s really going on at them…

Fascist Slayer says:

Re:

LMMFAO… What wont’ Fascist Amerika do to imprison and incarcerate its citizens. I’m guessing the largest prison population on earth just isn’t enough.

Maybe the people in this story should take it to another level and find a foreign embassy and make a plea for asylum, preferably Russia, from what I hear it’s a good place these day’s for Americans seeking freedom.

RUSSIA STRONG!!

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