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
    Sama, 5 Jun 2010 @ 11:07am

    Last summer I was stopped by a police officer while giving an intoxicated friend, who was completely passed out, a ride home. Though sober and obviously better suited to drive home than my friend, who owned the car, I was not a licensed driver. That is why I was careful to obey to the speed limits. The officer told me that I had a brake light out, though the lights were fully functional when I checked later that night. The fact that I did not have a driver's license didn't seem to bother him too much. The officer noticed my drunk friend and asked me to step out of the car. He proceeded to give me a field sobriety test, which I passed. He then informed me that my vehicle smelled like marijuana and searched through my purse. He found a glass pipe, and then had me lay over the hood of the car so he could pat me down. It took him almost ten minutes to pat me down, and when he was done he began to remove my pants. I am, by the way, a woman. I called him out on trying to illegally strip search me and asked for his name & badge number. At that point he told me to drive home...and he let me go with my pipe.

    If I had video footage of that cop, I would have pressed charges. Hell, I probably should have either way. But the fact of the matter is this: some cops are immoral; some break the law, and some will take advantage of us. Some may even beat the crap out of us. If we can video tape them in order to keep them in line, then that's perfectly fine with me. There are other ways to protect ourselves...

    Guns are cheaper than good cameras, anyways!

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