Police And Courts Regularly Abusing Wiretapping Laws To Arrest People For Filming Cops Misbehaving In Public Places

from the to-protect-and-serve? dept

Back in April, we wrote about the case of a motorcyclist in Maryland who was wearing a helmet-mounted camera while riding his motorcycle (admittedly, above the speed limit). As he stopped at a traffic light, an off-duty police-officer in plain clothes and an unmarked car jumped out of his car with his gun drawn. All of this was caught on video. No matter what you think of the cop's reaction, what happened later is ridiculous: after the biker, Anthony John Graber III, posted the video from his helmet cam to YouTube, he was arrested for illegal wiretapping, based on Maryland's two-party consent rule for recording. As we explained at the time, wiretapping laws that require all parties to consent were not, at all, designed for this type of situation.

However, apparently this sort of thing is becoming all too common -- and stunningly, many courts are siding with the cops. Gizmodo recently had a good article highlighting how police in states that require all parties to consent to recordings have been using this law against being videotaped in public, and the courts are siding with them. What's really scary is that most of those laws even have clearly written exceptions for recording in public places "where no expectation of privacy" exists.

Yet, the police and the courts both seem to ignore that part of those laws:
The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler's license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

In 2001, when Michael Hyde was arrested for criminally violating the state's electronic surveillance law -- aka recording a police encounter -- the Massachusetts Supreme Judicial Court upheld his conviction 4-2. In dissent, Chief Justice Margaret Marshall stated, "Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals...." (Note: In some states it is the audio alone that makes the recording illegal.)

The selection of "shooters" targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate.
That last sentence is the real problem here. Two-party consent laws were clearly designed to be used in situations where someone was being recorded privately -- such as over a phone call, or in a private conversation. When police are doing things (especially questionable activities) out in public, we should be encouraging the public to record those incidents and report them. The laws are being abused to try to stop people from whistleblowing on bad behavior by police. That has nothing to do with the purpose of two-party consent laws. It's really scary that the courts didn't immediately throw out these cases.

Filed Under: abuse, police misconduct, wiretapping

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  1. identicon
    Anonymous Coward, 4 Jun 2010 @ 8:04pm


    I've come to accept the fact that what we see in mainstream media hardly reflects what really happens in the real world. It's dangerous for the mainstream media to give us a false impression of the real world; the impression that authority is generally good, big corporations are generally good, mainstream media journalists and officials do nothing wrong and they work so hard to serve the common good, societies biggest problem concerns blue collar crimes like bank robberies and whatnot and so we need more authoritarian control over this stuff, etc... and that big corporations abusing the legal system doesn't occur and that judges are generally fair, laws are generally equitable, enforcement is generally good, pharma companies generally innovate to find cures and the legal system we have gives them incentive to find cures, their actions do nothing to prevent innovative cures from entering the market and they really don't put much effort into doing so, the system generally seeks to cure you, not to treat you for the rest of your life and make money off of such treatments, donate your money to these cancer R&D groups they will find a cure (they've been promising it for so long and very few innovation occurs, instead, they take your donated money to obtain patents and prevent others from conducting R&D), the status quo is generally beneficial to the masses, patents and copyrights don't get abused, the patent and copyright laws are equitable (ie: they don't mention 95 year copyright terms), it is the pirates that are bad and causing all sorts of economic loss to everyone, our intention isn't to restrict competition, we just want to promote the progress, etc... when the exact opposite is generally true.

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