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.