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
    Marc, 5 Jun 2010 @ 10:13am

    State police or Police-state?

    I think it's high time that police officers were removed from the direct payrolls of municipalities and states, and probably the federal level as well. The wild west wasn't nearly so wild as Hollywood would have us believe. It was relatively calm in the towns that sprouted up along the way. And the police force was generally a private individual or contractor who was given a stipend or payment to perform the role of a sheriff or policeman. In our nation today, we tend to regard uniformed law enforcement officers as being the LAW. And that's another problem. . . There are no more "peace officers" that exist to "Serve and Protect". No, sir. In the past few decades they have become "LAW ENFORCEMENT OFFICERS". An odd analogy might be that of the useful and rightful employment of "clone warriors" (by the Republic in the Star Wars movies I, II, and III) which became the "Storm Troopers" of the Empire (in movies IV, V, and VI).

    Anyone entrusted with such power and authority SHOULD be held in check by a populace who have the right of self determination.

    The government on all levels has run amok with the Huns!

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