pageok
pageok
pageok
The Dark Side of Privacy Law:

InstaPundit links to a story about someone who was "convicted of violating state wiretapping laws" for "conceal[ing] a camera to videotape a Boston University police sergeant ... during a 2006 political protest."

That's pretty outrageous, but it's entirely consistent with a 2001 Massachusetts Supreme Judicial Court decision in Commonwealth v. Hyde, which is based on Massachusetts' extremely broad privacy law:

This case raises the issue whether a motorist may be prosecuted for violating the Massachusetts electronic surveillance statute ... for secretly tape recording statements made by police officers during a routine traffic stop. A jury in the District Court convicted the defendant on four counts of a complaint charging him with unlawfully intercepting the oral communications of another .... We conclude that [the state interception law] strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter. Accordingly, we affirm the judgments of conviction.

... On October 26, 1998, just after 10:30 P.M., an Abington police officer stopped the defendant's white Porsche, because the automobile had an excessively loud exhaust system and an unlit rear registration plate light. Three other Abington police officers arrived shortly thereafter and the stop quickly became confrontational. During the course of the stop, which lasted approximately fifteen to twenty minutes, the defendant and his passenger, Daniel Hartesty, were ordered out of the automobile, and Hartesty was pat frisked.

One officer reached into the automobile, picked up a plastic shopping bag that lay on the floor by the passenger seat, and looked inside. (The bag contained compact discs.) At one point, the defendant stated that the stop was "a bunch of bullshit," and that he had been stopped because of his long hair. One officer responded, "Don't lay that shit on me." Later, another officer called the defendant "an asshole." The defendant was asked whether he had any "blow" (cocaine) in the car.

At the conclusion of the stop, the defendant and Hartesty were allowed to leave. No traffic citation was issued to the defendant, and the defendant was not charged with any crime. According to the testimony of one police officer, the defendant was "almost out of control" and the stop "had gone so sour," that it was deemed in everyone's interest simply to give the defendant a verbal warning. Unbeknownst to the officers, however, the defendant had activated a hand-held tape recorder at the inception of the stop and had recorded the entire encounter.

Six days later, the defendant went to the Abington police station to file a formal complaint based on his unfair treatment during the stop. To substantiate his allegations, he produced the tape recording he had made. A subsequent internal investigation conducted by the Abington police department, which concluded on February 1, 1999, exonerated the officers of any misconduct.

In the meantime, the Abington police sought a criminal complaint in the Brockton Division of the District Court Department against the defendant for four counts of wiretapping in violation of [the state law].

So there you have the dark side of "privacy" — the law aimed at protecting privacy ends up wrongly restricting people's liberty, and people's ability to protect themselves against police misconduct. Here's part of the court's rationale:

We reject the defendant's argument that the statute is not applicable because the police officers were performing their public duties, and, therefore, had no reasonable expectation of privacy in their words. The statute's preamble expresses the Legislature's general concern that "the uncontrolled development and unrestricted use of modern electronic surveillance devices pose[d] grave dangers to the privacy of all citizens of the commonwealth" and this concern was relied on to justify the ban on the public's clandestine use of such devices.

And this protection of "privacy" extends not just to allegedly misbehaving cops but also to ... kidnappers calling in ransom requests: "In Commonwealth v. Jackson, this court rejected the argument that, because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim's brother would not be prohibited ...."

These incidents aren't necessarily an indictment of all such laws. Perhaps such a law could be properly drafted to exclude audiotaping of conversations with the police, or of conversations with people who one reasonably believes are trying to extort something from you or threaten you. But the incidents are a warning that not all laws proposed in the name of "privacy" are good, especially when they try to protect one person's privacy by constraining another's liberty to record conversations to which one is lawfully a party.

UPDATE: Even Prof. Dan Solove (Concurring Opinions), who often disagrees with me on privacy issues, agrees on this one.

Zacharias (mail):
Rodney King was lucky in that the guy who videotaped the out-of-control cop assault on him videotaped from a distance. What a motorist needs to do is constantly run a videotape and audio recorder in an endless loop to "tape the birds," of course. Then when he suffers cop abuse, all he needs to do is turn off the tape and preserve the evidence. Tough that the cops just unintentionally happened to get recorded along with the birdsong!
12.11.2007 6:38pm
whit:
as a cop, i would LOVE if i could audiotape people (w/o their knowledge) and think they should have the same right to do so with me.

however, in WA state, it's a CRIME (misdemeanor) for me to do so.

tape recording elimintaes he said/she said bogus complaints (protects officers from false claims) and protects people from rogue officers.

it also protect victims of sexual harassment, who can tape record the incident to bolster their case.

but not in WA. thanks to our liberal legislature.

tape recording keeps EVERYBODY honest. that's a good thing.

some have argued that conversations between LEO and citizen are not "private speech" and thus the statute does not apply. i'm not going to be the guinea pig for that, and be arrested for recording somebody w/o telling them first.
12.11.2007 6:49pm
Doug Appelt (mail):
Actually, I don't think the "automatic videotape" trick would work in all jurisdictions. Glenn Reynolds once blogged this story (http://instapundit.com/archives/031169.php) in which a person with a surveillance video camera in his own home was charged with A FELONY for videotaping police and charging them with misconduct. It sounds like a burglar caught on a surveillance video could have his victim brought up on charges....
12.11.2007 6:53pm
Gilbert (mail):
There ought to be an exception for recording a public official in a public place, but think about your car as if it were your home, and I doubt many people would endorse the principle that even in your home you ought to have the right to record other people without their knowledge.

I wonder how many defendants know they are being recorded by an officer's dash-cam. Too much of this discussion would turn on a fine reading of the statute.
12.11.2007 6:57pm
PatHMV (mail) (www):
I think that the law should always permit one-party consent taping. If you're talking with someone else, then you have no expectation of "privacy" with that person. What's private about that, with regards to that other person? If the other person chooses to record what you tell them, well too bad. You don't want to take that risk, don't talk to the person.

One-party consent states further empower the powerful and endanger the innocent and weak (victims of police misconduct, victims of domestic violence, etc.). Such laws are unjust. I should have an absolute right to record any conversation to which I am a party, period.
12.11.2007 7:05pm
Fub:
PatHMV wrote at 12.11.2007 7:05pm:
I think that the law should always permit one-party consent taping.
Even in a two-party consent jurisdiction, if the other party is informed of the recording and continues the transaction, he has consented.

I've experienced that with interstate calls to financial companies. When you are beginning a transaction by phone (say ordering a transfer of funds, or whatever), the clerk says "this call may be recorded for yada yada purposes". If I keep talking, I have consented to the recording.

I don't see why a small sign on a car window, or even a verbal advice from a motorist wouldn't have the same interpretation and result.

Certainly a cop could order the person to stop recording, but failure to obey a police offer's ***lawful*** order isn't the same as secretly taping the interaction.

Of course there is always the question of whether such an order would be lawful, or whether the cop would tazer you or otherwise injure you for not complying.
12.11.2007 7:16pm
whit:
"I think that the law should always permit one-party consent taping."

i agree 100%

" If you're talking with someone else, then you have no expectation of "privacy" with that person."

correct. they can tell other people what you said (with limited exceptions that don't apply like lawyer-client or whatnot. heck, they can even prosecute you for what you said (if you threatened them for instance), but merely using technology to ACCURATELY create a true record is illegal. its nonsensical. it is NOT a privacy issue. if you speak to a person, you accept that what you say can be known to any person that person tells of your conversation. this is referred to as the "gossipy sorority girl" or "breck" doctrine.

" What's private about that, with regards to that other person? If the other person chooses to record what you tell them, well too bad. You don't want to take that risk, don't talk to the person. "

bingo!

"One-party consent states further empower the powerful and endanger the innocent and weak (victims of police misconduct, victims of domestic violence, etc.)."

they ALSO endanger the powerful (supposedly) e.g police themselves.

what better way to get back at an officer (or system) you don't like than to generate a false complaint? and even if the complaint is not sustained, there is still in the back of some people's minds the idea that 'well he might have done it, it just can't be proven"

what these recordings do is PROTECT the innocent AND convict the guilty.

i am not at all concerned about citizens recording me... because i do the right thing. but i want the same right to record them as they would have to record me. that's fair, and it protects me from false claims (which frankly, are way more common than legitimate ones imo)

" Such laws are unjust. I should have an absolute right to record any conversation to which I am a party, period."

i totally agree.
12.11.2007 7:16pm
David M. Nieporent (www):
Whenever university officials want to punish students and FIRE takes up the students' case, the universities always hide behind "privacy" as a reason they won't explain their behavior. (And they do so even in situations when the students have explicitly waived their privacy rights in writing!)

So "privacy," rather than protecting the students, becomes the university's way of saying, "We have secret evidence we won't tell you about."
12.11.2007 7:21pm
whit:
"There ought to be an exception for recording a public
official in a public place,"

YES, but that should work both ways. cops should be able to record you, and you should be able to record them. keeps EVERYBODY honest, protects cops from false claims (my concern) and protects citizens from bad cops (also my concern). win/win.
12.11.2007 7:21pm
Vivictius (mail):
Differences in states I guess, but our State Troopers all carry a little pen that is actually a audio recorder. Not sure about the local cops. Personally I think all the law enforcement types should be recorded (audio and visual) whenever they are on duty.
12.11.2007 7:24pm
whit:
"Personally I think all the law enforcement types should be recorded (audio and visual) whenever they are on duty"

when they are at lunch (donuts!) ? taking a pee? picking their nose? consulting with defense attorneys and prosecutors?

we don't like big brother any more than you do.
12.11.2007 7:26pm
wuzzagrunt (mail):
I think that the law should always permit one-party consent taping. If you're talking with someone else, then you have no expectation of "privacy" with that person.


Yes and no.....

It should be legal to surreptitiously record a public official extorting a kickback from a contractor. It should be legal to record a babysitter using your toddler as a punching bag. It should not be legal to secretly video tape the action when you get a girl (or guy) into your dorm room for a tryst.

I'm not a lawyer, but I don't think it would be too difficult to craft a law that takes into account the public's genuine interest in protecting privacy, but acknowledges the public's interest in exposing certain kinds of "private" behavior.

Maybe we need to start electing cleverer lawyers to the various legisltures
12.11.2007 7:30pm
PersonFromPorlock:
Presumably, an officer who stops a motorist is willing to testify in public, and even be rigorously cross-examined, about what happened during that stop. What expectation of privacy can he have?

I still say that a court which refuses to distinguish right from wrong and relies on 'legal' and 'illegal' is functionally insane under Mcnaughton. This case is a good example of what I'm talking about.
12.11.2007 7:40pm
Thomas_Holsinger:
I do not understand how a making of a videotape taken in a publically accessible place can be deemed criminal. It looks like a 1st Amendment violation to me. Civil penalties for invasion of personalty are one thing. Criminal is quite another.
12.11.2007 7:47pm
edh (mail):
Anyone know what the "protest" was about in the BU case?

Just curious.
12.11.2007 7:52pm
Doug Appelt (mail):
I guess that videotaping something like a drug bust could at least in theory involve something like photographing an undercover informant, and that might be something that police would have a legitimate interest in preventing. What should be prohibited is simply suppressing evidence of police misconduct (or incompetence).
12.11.2007 7:58pm
wuzzagrunt (mail):
Thomas_Holsinger:

I do not understand how a making of a videotape taken in a publically accessible place can be deemed criminal.



I don't know the history of all these laws, but I believe at least some are a reaction to men (presumably) using cellphone cams to video/photograph up the skirts of women on escalators, and such.
12.11.2007 7:58pm
Daedalus Mugged:
Whit,
I disagree that one party consent should work both ways in interactions between public officials and private citizens. There is a huge difference between a citizen recording a public official in his public duties and the gov't recording private citizens.
12.11.2007 8:13pm
FoolsMate:
"Personally I think all the law enforcement types should be recorded (audio and visual) whenever they are on duty"


when they are at lunch (donuts!) ? taking a pee? picking their nose? consulting with defense attorneys and prosecutors?

we don't like big brother any more than you do.


When they are on duty, in uniform, with reasonable common sense exceptions: peeing!!! (please), privileged consultations, etc. For their protection and that of the public.
12.11.2007 8:15pm
Daedalus Mugged:
In the situation that Fub envisioned, a citizen notifying a police officer during a stop that the driver was recording the interaction, I expect the outcome be the officer ordering the citizen to stop recording. Would that be a legal order or no? Why?

I recognize that the answer would vary by jurisdiction, but what would the likely outcome be? For those with LE experience, how would you expect a LE officer to react to a citizen refusing to stop recording? In the event that it went to trial, what would you privacy law experts expect the outcome to be?

In many situations, notification or recording is sufficient, and continuing with the interaction is a form of a consent. Would that apply to a traffic stop? Or a protest?

To the extent that the answer depends on state, I am personally most interested in PA, NJ and NY, but am curious about the underlying principles.
12.11.2007 8:20pm
Tautala:
How is recording or filming a cop at a traffic stop any different than news reporting? What about Paparazzi?
12.11.2007 8:33pm
whit:
"I disagree that one party consent should work both ways in interactions between public officials and private citizens. There is a huge difference between a citizen recording a public official in his public duties and the gov't recording private citizens."

when it comes to a citizen speaking to a police officer, it only makes sense that the officer should have the same right to record that the person does. #1 it is equally as important for an officer to be able to protect against false complaints as it is for the citizen to protect against bad conduct #2 i believe in equality.

it doesn't surprise me that you want to give citizens the right to record their conversations with cops, but not the other way around.

but that is unjust, and deleterious to the search for justice and truth.
12.11.2007 8:51pm
Bored Lawyer:
What an asinine decision. IIRC, in New Jersey, where I first practiced, the rule was there was no expectation of privacy for anything that took place in public. IF you are doing something out in the open where all and sundry can see you, how can you claim an expectation of "privacy?"
12.11.2007 8:55pm
MikeTheActuary (www):
I'd think that it wouldn't be unreasonable to make an exception in such privacy/recording laws to the effect that making a recording to document a crime or a tort (or to defend against the same) is legal, provided that the recording is used solely for those purposes.

Anyone know what the "protest" was about in the BU case?


It was a Darfur protest, FWIW. Apparently they were videotaping when the officer approached. The officer asked the protester to put the camera away; the protester instead put it in his pocket, still recording.
12.11.2007 8:58pm
whit:
"I recognize that the answer would vary by jurisdiction, but what would the likely outcome be? For those with LE experience, how would you expect a LE officer to react to a citizen refusing to stop recording? In the event that it went to trial, what would you privacy law experts expect the outcome to be? "

i would say "more power to you". I believe in truth and justice. both goals are better met in an open society where i (the cop) can record you, and you (the citizen) can record me.

i just have a problem with cops not having the same right to record their conversations with citizens as citizens have with cops.

as long as we are on equal footing to record, i am all for it.

it helps weed out bad cops, and it helps protect against false complaints. if somebody makes a false complaint against me, and i have irrefutable taped evidence that they lied in their statement of prosecution, i can forward a case for prosecution, and/or sue, although the liberal WA judiciary would never go for that, but i digress.


"In many situations, notification or recording is sufficient, and continuing with the interaction is a form of a consent."

correct. that's the law here.

" Would that apply to a traffic stop? Or a protest? "

also note that a protest is not a private conversation. anybody should be able to record at a protest, similar to recording a college professor giving a lecture (in a public university) or somebody giving a speech in a park. that's public speech.

laws regarding two party consent that limit recording of conversations you are a party to are different.

many legal leftists do not like that cops videotape at protests etc. where we are present. it has been argued that it is illegal. regardless, it's done to provide a record to justify force, and to protect against false claims, and to have a record that allow us to improve our response, and also prosecute those that commit crimes.

in an open society, a public protest is just that. we should be allowed to tape YOU, and you should be allowed to tape US. that's freedom, that's an open society, and that's how a record of truth is preserved vs. he said/she said rubbish.

To the extent that the answer depends on state, I am personally most interested in PA, NJ and NY, but am curious about the underlying principles.
12.11.2007 8:59pm
Thomas_Holsinger:
California law criminalizes taping of conversations in which there is an expectation of privacy. It was originally written to cover audiotaping.

The Massachusetts statute here concerns videotaping, however. An officer picking his nose in public, or beating a little old lady in public, has no expectation of privacy.
12.11.2007 9:01pm
holdfast (mail):
I am, I think, pretty pro-police but this case just strikes me as insane. How can policeman speaking during a riot or near riot have an expectation of privay? Was there no media present?

I completely agree with Whit - recording interactons with LEOs seems like a good idea - it protects the innocent/honest parties, whether they be citizen or cop.
12.11.2007 9:04pm
Charlie (Colorado) (mail):

I recognize that the answer would vary by jurisdiction, but what would the likely outcome be?


To merge a couple of threads, I'd suspect it would be for the police officer to taze the videotaper, followed by extensive and learned argument over whether that was an inappropriate use of force.
12.11.2007 9:12pm
whit:
fwiw, i think the law is absurd. if it happens in public, it should be videotapable - by ANYBODY.

heck, i know there was some controversy a while ago when an admitted pedophile (but one who had never committed a sex assault crime or at leat never been caught) admitted on his website that he went to HS football games and videotaped the cheerleaders.

he shared these tapes etc. with others. and everybody's screaming "arrest him" and that there should be some sort of law to criminalize this.

that's absurd.

if you are bouncing around in a cheerleader outfit in public, then clearly you have no expectation of privacy. it may SUCK that this guy was video'ing these teen girls, but they weren't nekkid, or engaged in sexual acts, so it wasn't child porn and should be legal.

there's a lot of what i call jack mccoy'ism in stuff like this. people see an act that outrages them and they want prosecutors (who are often quite willing) to twist the law to try to turn abhorrent LEGAL behavior into some sort of crime.
12.11.2007 9:20pm
ReaderY:
Since neurons are electrical in nature, why isn't human memory an electronic means of recording?
12.11.2007 9:28pm
Alcyoneus (mail):

whit wrote, "when it comes to a citizen speaking to a police officer, it only makes sense that the officer should have the same right to record that the person does."


No way. Police are agents of the government and subject to additional constraints that do not bind private citizens. That's common sense. It's unsurprising that an agent of the government would miss that.

Police should have a kind of probable cause standard for recordings, but citizens should be free to record anyone on the public payroll pretty much anytime.
12.11.2007 9:40pm
markm (mail):
whit: Who has suggested that cops should not have the right to record citizens when they are interacting with them? (That's quite different from spying with secretly placed cameras and recorders, even in public places - which cops also often do.)

wuzzagrunt:
I'm not a lawyer, but I don't think it would be too difficult to craft a law that takes into account the public's genuine interest in protecting privacy, but acknowledges the public's interest in exposing certain kinds of "private" behavior.

Maybe we need to start electing cleverer lawyers to the various legisltures


I think the problem is, we've already elected too many clever lawyers to the legislatures - clever and not very honest lawyers that see how "privacy" can be used to hide their true purpose of making it illegal to tape them soliciting "campaign contributions". You need to propose laws so simple that the SOB's can't twist it to their advantage.

Make it legal for anyone to record anything he or she can see or hear in places they are legally, but put some limits on revealing these recordings to others when it is not evidence in a lawsuit or a crime investigation, or otherwise of public concern. Also, the right to privacy in this context should be protected primarily by tort law, perhaps with a backup criminal law for truly outrageous behavior that predictably causes damage far beyond the average person's ability to pay. You can videotape your sex partner without her knowledge, but if you put it on the internet, she can sue you for everything you own and ask the prosecutor to send you to prison, too. (With a possible exception for public figures...) You can secretly videotape your conversations with Officer Unfriendly and Councilman Greedy, and you can use those tapes in court. You can also put those tapes on the news if the events recorded are a public concern - but it's darn near a tautology that anything that makes the news is a public concern. Peeping through a hole into the ladies room is a crime, and so is putting a camera there. You can't lay the camera on the ground to take up-skirt shots of unaware passersby. It might be legal to lay on the ground yourself with or without the camera, but then I'd figure that a woman who steps over you is intending to show you something.
12.11.2007 9:43pm
markm (mail):
As for cops telling citizens to turn off recorders and cameras - do they really want to go into court as a defendant when their last recorded words were, "Turn that off"? I know there are cops that have done that, but it's an admission of guilt...
12.11.2007 9:48pm
Professor moriarity:
Note well that the effect of such laws is that Don Corleone is much freer to threaten people without fear of evidence; a public official is much freer to take a bribe without fear that the briber may have evidence against him; and (of course here is the beauty, for some), Linda Tripp can be prosecuted for having evidence of the subornation of perjury by, or with the conivance, or knowlege, of the President of the United States!
12.11.2007 9:50pm
whit:
"No way. Police are agents of the government and subject to additional constraints that do not bind private citizens."

correct. but sanctions against recording should not be one of them. not in a free, open society.

if you TRULY value open society, and want society ot have good cops, then you should also want cops to be protected from false complaints. the only way to do that is to allow them the same right to record as others have.

" That's common sense. It's unsurprising that an agent of the government would miss that. "

no, it's not common sense. it's anti-cop rubbish. citizens can record ME but i can't record them, for the same conversation?

typical double standard

Police should have a kind of probable cause standard for recordings, but citizens should be free to record anyone on the public payroll pretty much anytime.
12.11.2007 10:22pm
Duffy Pratt (mail):
markm:

If this sort of law is on the books, then its probable that a motion to suppress the tape would succeed, and thus the "admission of guilt" would never get in front of a jury.

Here, I wonder why the defendant does not appear to have raised a first amendment defense. With the advent of YouTube and other Internet distribution, everyone with a cell phone might share in the freedom of the press.
12.11.2007 10:24pm
whit:
"Police should have a kind of probable cause standard for recordings, but citizens should be free to record anyone on the public payroll pretty much anytime"

iow, its ok for citizens to secretly record the conversation they have with me, but not vice versa. so, if somebody wants to make a false complaint against me, they can be certain i am not recording my conversation with them

yea, that's fair and just. lol
12.11.2007 10:26pm
pmorem (mail):
It seems to me that "privacy" is a really weak place to defend liberty. They're really not the same thing. This is just one example of the conflict between privacy and liberty.

Privacy extends shadows to cover all manner of conduct and misconduct. In doing so, it obscures the line between "legal" and "illegal", seeming to preserve liberty within its greyness, yet actually opening the door to far greater "discretion" and abuse by the powerful.

I've worked for both the largest manufacturer of CCTV in the US and the makers of the top news helicopters. I have a fair notion of what the cameras can do, and where the systems are heading. At some point soon we're going to realize that privacy has been banished from public places.

To my mind, "single party consent" allows cameras to join firearms in preserving the balance of power.
12.11.2007 10:40pm
Anonymouseducator (mail) (www):
As long as we are going for an even playing field, I want to be able to arrest police officers.
12.11.2007 10:45pm
pmorem (mail):
Alcyoneus,

I don't think whit is looking for the recordings for law enforcement purposes. It's for his personal self-defense.
Law Enforcement agencies represent bodies with deep pockets, so they're tempting targets for shakedowns. Further, there are several agencies and bodies in WA where it's a legitimate concern that an employee might be "hung out to dry".
12.11.2007 10:50pm
Dave N (mail):
if the Utah Highway Patrol was not using one-party consent to record traffic stops, we wouldn't have the video that has been the cause of such intense debate over the last few days. Just food for thought.
12.11.2007 10:58pm
Thomas_Holsinger:
I just reread the post. The incident involved an audiotape, not a videotape, and there were multiple officers present, i.e., there was no expectation of privacy between one officer and one citizen. Furthermore the officers were charged with the performance of official duty.

IMO this statute is, at least as applied, federally unconstitutional.
12.11.2007 11:03pm
whit:
AND a person can feel free to make a false complaint about an officer, since he knows that the officer can't have recorded the encounter without telling him


"Note well that the effect of such laws is that Don Corleone is much freer to threaten people without fear of evidence; a public official is much freer to take a bribe without fear that the briber may have evidence against him; and (of course here is the beauty, for some), Linda Tripp can be prosecuted for having evidence of the subornation of perjury by, or with the conivance, or knowlege, of the President of the United States!"
12.11.2007 11:04pm
whit:
"I don't think whit is looking for the recordings for law enforcement purposes. It's for his personal self-defense.
Law Enforcement agencies represent bodies with deep pockets, so they're tempting targets for shakedowns. Further, there are several agencies and bodies in WA where it's a legitimate concern that an employee might be "hung out to dry"."

bingo. and remember that despite the fact that we are public agents,a false complaint affects us PERSONALLY - loss of wages, or even career, lawsuits, and even criminal prosecution.

i think a good compromise is that when a private conversation is recorded by a party to a conversation without advising the other, the tape itself cannot be used by either party as direct evidence in a criminal prosecution,. but could be used to rebut, and in a civil trial.

that's a fair compromise.

but if one is truly interested in JUSTICE, one should want the right to record extended to all - victims of sex harassment, cops, citizens being stopped by police, etc.

it promotes justice, and it protects the innocent AND convicts the guilty.

that's a good thing
12.11.2007 11:08pm
guest (mail):
So, 60 Minutes doing a sneaky 'gotcha' story where they secretly videotape a slimy car salesman or policeman was/is illegal?
The guy who videotaped Rodney King being beaten (if they had this law in that area) was breaking the law?
The cameraman who got the cops/firemen blasting the black civil rights protesters was breaking the law?

Any local news team doing any videotaping, anywhere, anytime of any event involving Boston P.D.?
12.11.2007 11:18pm
Thomas_Holsinger:
whit,

The California law on the subject has an exception for gathering evidence of crime or fraud. I once used it to tape an officer who seemed to be trying to extort a local merchant who was my client. My PI was a retired officer and we both appeared before the DA with our evidence.

The DA decided not to prosecute, but the officer was suspended for a week and transferred to motorcycle duty.
12.11.2007 11:20pm
Bill Poser (mail) (www):
To me the verb "to intercept" means breaking into a communication between two other parties. It is impossible to speak of what I do when I listen to my interlocuter on the telephone as "interception". On the plain language of the Massachusetts statute, therefore, which prohibits "interception", only the consent of a single party is required. Does "intercept" have a legal usage with which I am not familiar?

(There is another, related, usage of "intercept" but it doesn't apply in this case. "intercept" can mean breaking into the communication channel between the two endpoints. In this usage, if I install a tap on my own telephone line, I am indeed intercepting the telephone signal even when I am one of the participants in the conversation. However, if I record the output of a speakerphone or, as in the case at hand, a "broadcast" of the police offer's voice, no interception takes place in this sense either.)
12.11.2007 11:21pm
Fub:
whit 12.11.2007 10:22pm:
Police should have a kind of probable cause standard for recordings, but citizens should be free to record anyone on the public payroll pretty much anytime.
I agree with that, presuming you are talking about secret police recordings.

For open police recordings of events, demonstrations and the like, I think most objections stem not from the belief that police will use the recordings as evidence to prosecute actual unlawful acts, but from the belief that the recordings will be put to darker uses.

California has a fairly long history of police "red squads", the most notorious of which operated in the 1950s-70s. They secretly infiltrated and recorded (both openly and secretly) all manner of organizations, and photographed and recorded demonstrations, strikes, and the like. Few, if any, of the organizations recorded were actually criminal or illegal operations as far as I know. The "red squads" used their "intelligence" in various ways to disrupt organizations that they simply didn't like.
12.11.2007 11:29pm
whit:
"For open police recordings of events, demonstrations and the like, I think most objections stem not from the belief that police will use the recordings as evidence to prosecute actual unlawful acts, but from the belief that the recordings will be put to darker uses. "

right. these objections come from the idea that the police are collecting "non criminal intelligence" of lawful protest.

of course in the cases i saw where we did that (WTO etc.) that wasn't really the case (lawful protest) and it was for : prosecution of criminals, civil liability protection for us, documentation for our actions, ability to identify individual officers if they committed misconduct, etc.

"California has a fairly long history of police "red squads", the most notorious of which operated in the 1950s-70s. They secretly infiltrated and recorded (both openly and secretly)"

fwiw, seattle city council passed a law such that Seattle PD cannot surreptitiously (undercover) record meetings, etc. they get around the statute by using officers from outside agencies to collect their intelligence. lol

" all manner of organizations, and photographed and recorded demonstrations, strikes, and the like. Few, if any, of the organizations recorded were actually criminal or illegal operations as far as I know. The "red squads" used their "intelligence" in various ways to disrupt organizations that they simply didn't like."

yes, that is where the (and i think it is justified) dislike of this practice stems from.

there is of course a big difference between videotaping a private meeting, and a RIOT, which is about as public as you can get (WTO) not to mention the fact that there were lawyers guild d00ds, and about 10 trillion kids with video cameras etc. doing the same thing.

and this was before cell phone cameras became commonplace.

fwiw, when speaking of police right to record others (and they should have the same right of me) , i was referring to contacts i have with citizens in the course of my work - traffic stops, domestic violence calls, robbery investigations, etc.

if we truly want an open society, and if we truly want the innocent to be able to protect themselves, then innocent cops (falsely accused) should have the same right to protect themselves from false claims as citizens should have to protect themselves from rogue cops.
12.11.2007 11:41pm
Carolina:
Massachusetts must import their judges from Mars.

A "privacy" interest in a conversation taking place in plain view on a public street when one of the parties is a government actor? That doesn't even pass the laugh test.
12.11.2007 11:56pm
American Psikhushka (mail) (www):
One-party consent recording doesn't necessarily represent the "truth". Recorders can be turned on and off. One party could bait, harass, and make felony threats against the other and only turn the recorder on for the target's angry response. So much for "justice" - one party committing serious crimes just to gather something to try to damage a party not engaged in criminal behavior. Someone could use a technique like that in all kinds of situations to swindle and defraud.
12.12.2007 12:10am
Alcyoneus (mail):

whit wrote, "no, it's not common sense. it's anti-cop rubbish. citizens can record ME but i can't record them, for the same conversation? typical double standard"


If recognizing a cop as an agent of the government restricted by the Constitution is being "anti-cop", then I'm definitely anti-cop.

There is a double standard. You cops get to all kinds of special rights to use force, and you also get all kinds of compensatory restrictions. We non-cops don't get special rights to use force, so we don't have compensatory restrictions. Read the Federalist Papers for a nice justification for the distinction between state and non-state action.


whit wrote, "i think a good compromise is that when a private conversation is recorded by a party to a conversation without advising the other, the tape itself cannot be used by either party as direct evidence in a criminal prosecution,. but could be used to rebut, and in a civil trial. that's a fair compromise."


Sure. Let's apply all those probable cause restrictions to civilians. Not. Nice try, but no way copper. You keep your special powers to use force, and we'll keep our rights to record public happenings by officers of the public on the public payroll.


pmorem wrote, "I don't think whit is looking for the recordings for law enforcement purposes. It's for his personal self-defense."


Cool. When police are not acting as an agent of the government, that is when they don't enjoy special rights to use force, that is when they aren't police at all, they can record public affairs of the government just like everyone else. I have no problem with that.

This all goes to show that by and large cops want to screw the public, and they really want get rid of probable cause restrictions on their methods. I'm against that because I don't trust anyone with that much power --- even if they have a badge.
12.12.2007 12:14am
Duffy Pratt (mail):

Massachusetts must import their judges from Mars.

A "privacy" interest in a conversation taking place in plain view on a public street when one of the parties is a government actor? That doesn't even pass the laugh test.



Read the opinion. The statute itself doesn't say anything about privacy interests. It forbids secretly taping conversations. The judges applied the law as written. Its a terrible law.

Also, its probably unconstitutional as applied. But the defendant does not appear to have made any constitutional argument. Instead, the defendant wanted the court to write an exception into the statute that the legislature had not written into it. It did this, apparently, without even arguing that the exception was necessary to interpret the statute consistently with the constitution. I thought this was the sort of thing most people on this blog wanted judges to do.
12.12.2007 12:21am
HLSbertarian (mail):
I'm not sure if this has already come up, but the Mass. statute in question (MGL c272 s99) is not exactly reciprocal, as the Suffolk DA's press release claims.

There is an exception for recordings made BY the police if they're a party to the conversation and in the process of investigating certain crimes:


...arson, assault and battery with a dangerous weapon, extortion, bribery, burglary, embezzlement, forgery, gaming in violation of section seventeen of chapter two hundred and seventy-one of the general laws, intimidation of a witness or juror, kidnapping, larceny, lending of money or things of value in violation of the general laws, mayhem, murder, any offense involving the possession or sale of a narcotic or harmful drug, perjury, prostitution, robbery, subornation of perjury, any violation of this section, being an accessory to any of the foregoing offenses and conspiracy or attempt or solicitation to commit any of the foregoing offenses.
12.12.2007 12:35am
whit:
"One-party consent recording doesn't necessarily represent the "truth". Recorders can be turned on and off. One party could bait, harass, and make felony threats against the other and only turn the recorder on for the target's angry response. So much for "justice" - one party committing serious crimes just to gather something to try to damage a party not engaged in criminal behavior. Someone could use a technique like that in all kinds of situations to swindle and defraud."

look, let's not quibble. is it the "whole truth"? no . can it be messed with? yes (like any technology).

but c'mon. there is a not a police accountability group anywhere that doesn't agree that the single best tool to help prevent and to punish when it occurs - police misconduct - is video/audio tapes.

similarly, they are useful to PROTECT the innocents from false accusations.

the examples are legion. on both sides.

if you want to make the system more open, and want to bring more offenders to justice (both rogue cops and false accusers) - video and audio are a great TOOL. no, they are not the whole truth. but they are impartial, and they stand as witness.
12.12.2007 12:40am
Alcyoneus (mail):

HLSbertarian wrote, "There is an exception for recordings made BY the police if they're a party to the conversation and in the process of investigating certain crimes"


I haven't a single issue with police using recordings to catch criminals under the usual search and seizure restrictions. Catch the bastards.

But, according to whit, I'm engaging in "anti-cop rubbish" when I support a citizen's right to record their government at work in public, without sacrificing 4th Amendment protections.

I'm a bad person, I guess.
12.12.2007 12:44am
Alcyoneus (mail):

whit wrote, "but c'mon. there is a not a police accountability group anywhere that doesn't agree that the single best tool to help prevent and to punish when it occurs - police misconduct - is video/audio tapes. similarly, they are useful to PROTECT the innocents from false accusations."


Hey man, I'm not for further restricting the rights of police to record. I'm kinda happy as it is. Record arrests: you have cause to do it. But sometimes police don't have cause to record stuff, even when citizens can get away with it.

Compensatory restrictions for extremely broad discretion to use violence. It's a reasonable tradeoff, and I like it.
12.12.2007 12:47am
whit:
"Cool. When police are not acting as an agent of the government, that is when they don't enjoy special rights to use force"

irrelevant.

"that is when they aren't police at all, they can record public affairs of the government just like everyone else. I have no problem with that. "

you simply don't want fairness and truth. you want ONE side to have the RIGHT to surreptitiously record a conversation that it is party to, but not the other side. that's not equal justice, and it doesn't promote the TRUTH.

im interested in justice. that means i am just as diligent in trying to exonerate the innocent as i am to gather evidence against the guilty.

if i am investigating a crime, i would loove to have an audiotape, whether its exculpatory or inculpatory because it is an objective witness where i KNOW that witnesses, suspects, and "victims" often lie.

"This all goes to show that by and large cops want to screw the public, and they really want get rid of probable cause restrictions on their methods. I'm against that because I don't trust anyone with that much power —- even if they have a badge."

its no more power than the CITIZENRY should have. the right to record a conversation they are party to.

i want to protect the innocent and bring the guilty to justice. that's what the public wants too. it is a subversion of justice to make false allegations against somebody - whether that's the duke case, tawana brawley, or charles stewart, or a cop.

and i think cops, who are REQUIRED by law to deal with people in adversarial positions to them at time, to take them into custody, to use force, and to place themselves in harms way, ALSO have the protection of a NEUTRAL THIRD PARTY (a tape recorder).

but again, i'm interested in justice for everybody. you are interested in justice for everybody but The Man (tm).

and again, regardless of the fact that cops are govt. agents - when it comes to false complaints, they can be attacked as INDIViDUALS.

a false complaint of misconduct does not just attack govt. institutions. it attacks people - innocent cops who can lose wages, careers, or even their freedom.

everybody deserves justice.

but yes. cops do have SOME special authority (note that in my state, cops actually have LESS authority in general to use deadly force than civilians do - but our state constitution is very libertarian and that's good), but they also have special duties.

i can accept physical dangers. i can accept emotional stresses. i can't accept that any dingdong with a grudge should be able to make false claims against me, and i don't have the right to use a neutral third party (tape recorder) as a witness.

truth matters. so does justice. you have such an obvious grudge against the evil fascist corporatist military industrial patriarchal cop authoritarian agent that you can't extend protection for all?

do you NOT think that making false claims of brutality or whatnot should be punished, just as actual brutality is?
12.12.2007 12:52am
whit:
"Hey man, I'm not for further restricting the rights of police to record. I'm kinda happy as it is. Record arrests: you have cause to do it. But sometimes police don't have cause to record stuff, even when citizens can get away with it. "

the problem is that many encounterss don't start out with arrest. they start out maybe as a terry stop, traffic stop, or cops going into a DV or whatever.

the point is that if the cop only turns on the recorder when he's about to arrest, you have an incomplete record. is THAT better?

like i said, if i walk up on the street and talk to you in my uniform, whether a social contact, a terry stop, an infraction stop, or an attempted arrest - whether you claim to be a crime victim, witness, whatever - you should have the right to record every word i said. and i should have the same right. i would feel better if i knew that more people were recording the cops. cause it keeps us honest and helps weed out the bad apples. would i be embarassed by some of the things i]ve said to people in the course of my career were played back on tape? sure. but that's a tradeoff we make in an open society where police are public servants. but as public servants we are required to place ourselves in situations where people would LOVE to see us fired, imprisoned, etc. b ecause they don't agree with what we do, or who we did it to. we should be allowed to protect ourselves just as they can protect themselves.

but the real crux of the issue is that without tapes, it becomes he said/she said. and some people will reflexively believe the cops, other will believe the citizen. the reality is that either COULD be lying.

the tape may not be the whole truth, but it doesn't LIE.

i wear a vest to protect myself. i would like the same protection in regards to false complaint.

no GOOD HONEST cop need fear a citizen recording him. no GOOD HONEST citizen need fear a cop recording him.

but we both need protection from the rogue elements among us who would seek to do us harm.
12.12.2007 12:58am
Alcyoneus (mail):

whit wrote, "im interested in justice. that means i am just as diligent in trying to exonerate the innocent as i am to gather evidence against the guilty."

But we have a long history of government abuses of power. The country was even founded on the this idea, whit. You're a swell guy, I stipulate it. I don't have to give up my 4th amendment protections just because you're a nice fellow.

whit wrote, "its no more power than the CITIZENRY should have."

That's just it, whit. Police officers act as the government, not as citizens. That is a crucial distinction, and you are failing to make it.

whit wrote, "and i think cops, who are REQUIRED by law to deal with people in adversarial positions to them at time, to take them into custody, to use force, and to place themselves in harms way, ALSO have the protection of a NEUTRAL THIRD PARTY (a tape recorder)."

By and large me too. And the current regime of laws pretty much allows you to do just that. How does a citizen filming a police offer at work in public strip you of any protections? How does that restrict you from filming an arrest?

whit wrote, "you have such an obvious grudge against the evil fascist corporatist military industrial patriarchal cop authoritarian agent that you can't extend protection for all?"

I'm former Army Infantry big guy. I 'aint got a grudge against The Man(tm). I want The Man(tm) to stop encroaching the rights of citizens to examine the public acts of their government.

I don't want undercover cops or spooks to be outed. I'm talking about public acts of governance in which force is used. Police have wide discretion to beat people and put them in cages. We have to be vigilant over that kind of stuff. It deserves the highest scrutiny, of all acts of the government.

whit wrote, "do you NOT think that making false claims of brutality or whatnot should be punished, just as actual brutality is?"

Hell no. Stop characterizing my views like that.

I'm for felony prosecutions of false accusers, where intent can be shown.

Now that all the straw men have been set afire: once again, please tell me why a citizen recording public acts of governance (police actions) require eradication of 4th amendment restrictions on police surveillance.
12.12.2007 1:11am
Duffy Pratt (mail):
Depending on the state, there are statutes which permit ordinary citizens to use force. Here in Texas, people get away with killing intruders on their property (and now perhaps on their neighbor's -- google Joe Horn). If police used deadly force to catch the same intruders, they would most likely be fired, subject to discipline, or go to jail.

So, sometimes its true that citizens get away with using force that police would not be allowed to use.

With regards to this taping issue. Police, at least while on duty, are state actors. Thus, they are subject to the limitations of the constitution. There are situations where, even if a statute permitted taping, the police would not be able to lawfully engage in the taping while a citizen could.

When crying out for fairness, it would help if the critics of the police could also be fair. (And, for what its worth, I don't consider myself either a critic or an apologist for the police, at least as a general matter. There are times when they have really pissed me off. I've witnessed two police beatings -- one of a man who was already in handcuffs and restrained against a car. The cop in question hit him several times in the belly with a blackjack, while two other cops held him steady. OTOH, I've also had my life saved twice by cops. So, for me, its a mixed bag.)
12.12.2007 1:13am
Alcyoneus (mail):

Duffy wrote, "When crying out for fairness, it would help if the critics of the police could also be fair."

OK, maybe I'm being an ass. Have I been unfair? Have I failed to apply reasonable qualifications?

As I think about it, I haven't really applied the Principle of Charity. I've taken on the strongest interpretation, but I've prolly not taken the most benevolent interpretation.

I'll admit that I'm in error for that. I withdraw my strident claims of evil motives for police. But I think I can still appeal to the common human practice of pushing power to it's limits and the corrupting tendencies of power.

So, I'm still very much in favor of limits and scrutiny.
12.12.2007 1:28am
Elmer:
The last time I kidnapped someone and called the family to demand ransom, I told them not to record the call, and they agreed. Later, I found out they had lied to me: the whole conversation was taped. I felt so violated! Yet that was a small injustice compared to those that followed. The DA refused to prosecute those people for that act, and actually used the tape against me! The judge piled on as well. She allowed that tape as evidence, and at sentencing ignored my theory that such a gross invasion of privacy, by itself, was an excessive punishment for my act, so that no jail time was called for. She gave me 12 years. The worst part is the feeling that I can't trust anyone.

I'll admit to becoming grumpy and cynical. Yet tonight the clouds have been parted by a single ray of sunshine. Like a beacon of hope, Massachusetts shows that justice still lives. I'm moving there as as soon as I get out.
12.12.2007 1:55am
pmorem (mail):
Alcyoneus, I think you're still missing whit's point.

My understanding is that he wants tapes to protect himself when he becomes the defendant.

LEOs work for political organizations. They can be sacrificed for whatever reason of political expediency.

If we want competent, honest people working in law enforcement, there's a lot to be said for letting them take basic steps in self-defense.
12.12.2007 2:02am
David M. Nieporent (www):
if we truly want an open society, and if we truly want the innocent to be able to protect themselves, then innocent cops (falsely accused) should have the same right to protect themselves from false claims as citizens should have to protect themselves from rogue cops.
As Anonymouseducator pointed out above, you're the one who has something of a double standard as to when you think that cops and private citizens ought to have the same rights. For instance, you don't think private citizens ought to have the same rights to use force against rogue cops that cops do against private citizens. You think that if a cop unlawfully arrests someone, not only doesn't the citizen have the right to defend himself, but he doesn't even have the right to walk away without you pretending that "walking" is "resisting arrest."

You don't want a double standard? Cops and innocent citizens should have equal rights to use force against each other. Oh, wait, you don't want that.
12.12.2007 3:45am
dew:
I don't know the history of all these laws, but I believe at least some are a reaction to men (presumably) using cellphone cams to video/photograph up the skirts of women on escalators, and such.
The MA law dates back to at least the 80s, and specifically states why it is there. It supposedly was implemented due to organized crime.

Read the opinion. The statute itself doesn't say anything about privacy interests. It forbids secretly taping conversations. The judges applied the law as written. Its a terrible law.
Incorrect (well, except for the terrible law and applied as written bits). However silly the reasoning may or may not be, privacy is the explicit purpose of the statute:
MGL Chap 272 S99
(...stuf about organized crime...) The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited. The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime.

Depending on the state, there are statutes which permit ordinary citizens to use force.
Heh. This is Massachusetts we're talking about. It is a retreat until you are cornered state, even in your own home.

A "privacy" interest in a conversation taking place in plain view on a public street when one of the parties is a government actor? That doesn't even pass the laugh test.
See "Massachusetts, People's Republic of." Then it makes more sense. People seem to think the term is just a joke.

Massachusetts must import their judges from Mars.
Does South Africa count?
12.12.2007 5:12am
John D (mail):
I work at a 911 center. Everything we say on the phone or the radio is recorded. In some of the newer centers the 911 operators are recorded even when they're not on the phone. I don't care too much for that because some of the stuff we say off the air is not very complementary of the caller, or officers.

When the cop cars started getting video cameras the officers didn't like them. But the camera has saved their butts on a number of occasions and they're not so picky now.

Here in Oregon you cannot record someone in person without their permission. But if you are talking on the telephone only one party needs to know.

So if you're trying to get someone to say something incriminating you'd better get them to say it on the phone.
12.12.2007 5:15am
dew:
I work at a 911 center. Everything we say on the phone or the radio is recorded. In some of the newer centers the 911 operators are recorded even when they're not on the phone. I don't care too much for that because some of the stuff we say off the air is not very complementary of the caller, or officers.

Our local police and dispatch love the new laptops we have been putting in the cars. They can now send text messages (encrypted) back and forth with things that they don't want on the air. The town has even managed to get most of the laptops through Fed grants.
12.12.2007 5:33am
LongSufferingRaidersFan (mail):
Fub said "I've experienced that with interstate calls to financial companies. When you are beginning a transaction by phone (say ordering a transfer of funds, or whatever), the clerk says "this call may be recorded for yada yada purposes". If I keep talking, I have consented to the recording."

I've wondered if such companies might be sued under say California's unfair business practices law. They always say "MAY be recorded for QUALITY CONTROL purposes" when, in fact, they record ALL the conversations solely for use in possible litigation--and I'm sure any conversations that might reflect poorly on them just happens not to have been one of those that MAY be recorded (yeah right). This strikes me as an unfair practice as that concept is broadly defined under CA law. OF course, one would have to show some type of damages....
12.12.2007 8:29am
Virginian:

Our local police and dispatch love the new laptops we have been putting in the cars. They can now send text messages (encrypted) back and forth with things that they don't want on the air. The town has even managed to get most of the laptops through Fed grants.


But these text messages may be subject to FOIA requests. Early this year in Northern Virginia, several people openly carrying guns while eating lunch were questioned by the PD (every officer on-duty responded) and the situation became heated. Complaints were filed against the officers for the way they treated the people. As a result of FOIA requests, it was learned that the officers sent several very derogatory text messages about the complainants. The only punishment meted out to the officers was for the inappropriate text messages.
12.12.2007 9:25am
dew:
But these text messages may be subject to FOIA requests...

I hadn't really thought of that; such problems don't often happen in this town - the police were converted from a "townie" force to a pretty professional force by a chief ~15 year ago, and they have kept standards up fairly well. I could easily imagine your example happening any day of the week in at least two neighboring towns though...
12.12.2007 10:05am
alkali (mail):
dew writes:

"Massachusetts must import their judges from Mars."
Does South Africa count?


Actually, Chief Justice Marshall -- who is from South Africa and to whom this remark presumably refers -- dissented in the Hyde case:

"In our Republic the actions of public officials taken in their public capacities are not protected from exposure. 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 when they seek to hold government officials responsible by recording -- secretly recording on occasion -- an interaction between a citizen and a police officer."
12.12.2007 10:22am
Duffy Pratt (mail):
Dew:

The statute provides:


Except as otherwise specifically provided in this

section any person who -- willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.


Do you really think that the preamble text that you cite would count as an exceptions "specifically provided in this section."? Before answering, keep in mind that there are specific exceptions, clearly defined, in subsection D of section 99.
12.12.2007 10:58am
John R. Mayne (mail):
California is sometimes criticized for legislating anything that pops into its noggin, thus requiring multiple bookshelves for the state's laws, but well-thought-out exceptions generally - and, here, specifically - do a lot of good.

Cops can surreptitiously record people in places - like police cars - where there is no reasonable expectation of privacy. Citizens can normally record police action; they might make you put the camera down if you're busy getting arrested for something else, but the rise of recording devices is a good thing.

These rules are not that hard to implement without opening the door to everything. And as whit notes, it protects everyone - recorded police-citizen encounters have very little downside.

--JRM, not going to win the Comment of the Thread or Comment of the Month award - that goes to Elmer in a walkover.
12.12.2007 11:11am
dew:
Do you really think that the preamble text that you cite would count as an exceptions "specifically provided in this section."?

I am slightly confused. You say:
The statute itself doesn't say anything about privacy interests.
I respond that the statute explicitly states (in the preamble, as you note) that the entire reason for the law is to protect privacy. I am unsure what that has to do with the enumerated exceptions to the general rule forbidding secret recording. Am I missing something?
12.12.2007 11:29am
Fub:
LongSufferingRaidersFan wrote at 12.12.2007 8:29am:
I've wondered if such companies might be sued under say California's unfair business practices law. They always say "MAY be recorded for QUALITY CONTROL purposes" when, in fact, they record ALL the conversations solely for use in possible litigation--and I'm sure any conversations that might reflect poorly on them just happens not to have been one of those that MAY be recorded (yeah right). This strikes me as an unfair practice as that concept is broadly defined under CA law. OF course, one would have to show some type of damages....
I've wondered about that "may be recorded" phrasing also.

However, if one really suspects the company will act in bad faith and destroy or not record conversations not in its interest, then there is an easy solution. Announce to them that you are recording the transaction, and proceed to record it.

If they decline to continue the transaction after your announcement, then stop doing business with them immediately.
12.12.2007 12:02pm
Duffy Pratt (mail):
dew:

Maybe not. Of course, literally speaking, I was wrong. I didn't look at the entire statute. Instead, I read the opinion, which neglects the preamble.

What I should have said is that the opinion interprets the relevant section of the statute, which forbids all interceptions of oral conversations, except as specifically excepted in the statute. The specific exceptions appear in subsection D. The preamble, which the opinion ignores, is irrelevant to the plain language of the prohibition itself.

So, maybe I should have said that the relevant portion of the statute says nothing about privacy interests. The preamble does not appear to have any modifying force on the section, if you look at its plain language. In their concern to protect privacy, as stated in the preamble, they wrote a broad prohibition subject only to certain specific exceptions.

My main point was that the court was simply applying the plain language of the statute. I thought (perhaps hastily) that you disagreed with that point. If instead, you were just picking at nits, then fine. I concede that a part of the statute ignored by the court did indeed mention privacy. That mention, however, is irrelevant to the construction of the statute or the outcome of the case.
12.12.2007 12:30pm
Christopher Taylor (mail) (www):
There's some confusion here, I believe.

First, this was a problem because the tape recorder was hidden away, not simply because he was recording. People in public can be recorded all you want if you're not hiding the device away. They have a reasonable expectation of knowledge.

Second, agents of the government are limited by the 4th amendment not because of privacy issues, but because of liberty issues. ALL the power in the United States belongs to the citizens of the US, and the government may do NOTHING (legally) except that which is granted them by the people. In other words: they can't peek into your house without permission or because the people have given them a limited ability based on just and probable cause.

It's not because of privacy, but because of the concept of government we have in the US. That's the unfortunate part of being a Police Officer, I completely sympathize with whit's concerns and problems, I imagine it is incredibly frustrating.

But that's the way it has to be for us to have liberty and continue to in the future.
12.12.2007 1:24pm
David M (mail) (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 12/11/2007 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
12.12.2007 1:58pm
EIDE_Interface (mail):
This is an example of the US tipping into a police state and it has nothing to do with GW Bush, but the liberal court of Mass. Go figure.
12.12.2007 4:57pm
dew:
Maybe not. Of course, literally speaking, I was wrong. I didn't look at the entire statute. Instead, I read the opinion, which neglects the preamble.

Well, I sort of did the opposite; I barely skimmed the opinion and went to the statute; you are also "right" of course, the court seemed to say the preamble was just an ink blot. I do/did agree that the wording of the statute supported the ruling.
12.12.2007 5:55pm
American Psikhushka (mail) (www):
whit-

similarly, they are useful to PROTECT the innocents from false accusations.

And I illustrated an example of how it could be used to fraudulently implicate an innocent person.

but they are impartial, and they stand as witness.

No, they're not. They can be very biased and absolutely fraudulent as evidence. Just provoke - to the point of committing felonies even - the person off the record and keep their angry responses on the record. Edit or control the recordings so there are no references to the true cause of the person's responses. This goes beyond the person making the recording being a "bad person" - they are a criminal twice over - first in the provocations and second in lying and making fraudulent claims about their target's responses.

Now I realize recording conversations can be used for good purposes, but it should be realized that they can be completely fraudulent, inaccurate, and used as a vehicle for criminality. Measures should be taken to prevent this, what they are I don't know.
12.12.2007 6:31pm
American Psikhushka (mail) (www):
Alcyoneus-

Compensatory restrictions for extremely broad discretion to use violence.

How so? They're only allowed to use violence to protect themselves or others from imminent harm. Now they may get away with unwarranted violence much of the time, but this does not mean it is legitimate. When they do occasionally get caught it is still criminal and tortious.
12.12.2007 6:36pm
R. G. Newbury (mail):
Gee, do the exceptions in the Mass statute include the tape recording of testimony on court of someone who is subpoened to attend and does not actively consent to that recording?

What a patently ignorant and stupid law. What a patently ignorant and stupid set of judges to uphold that law.

Geoff
12.12.2007 7:08pm
Duffy Pratt (mail):
Geoff:

You think the judges should have refused to uphold the law, even though no-one even raised an argument about its constitutionality? Are the judges just supposed to say the following: "We think this law is stupid, therefore we refuse to enforce it." Or maybe: "This law is stupid, so we are going to rewrite it the way we like." It's that sort of judging that typically has people complaining on this blog.
12.12.2007 8:45pm
Milhouse (www):
American Psikhushka:
Compensatory restrictions for extremely broad discretion to use violence.
How so? They're only allowed to use violence to protect themselves or others from imminent harm.
Not according to whit. They can use violence whenever someone declines to obey whatever order they choose to give. Even if they know that there's no danger of any sort of harm whatsoever. Because they are kings and we are their humble servants who must jump when they say "frog".
12.13.2007 5:30pm
tomjedrz (mail):
My opinion here ...

The idea that when a police officer (or firefighter or paramedic or clerk) is on the government payroll they lose their individual rights is laughable and silly.

Whit the cop should have exactly the same ability to record as any other citizen, and should be able to use those recordings to defend himself against criminal and/or other misconduct allegations. The use of those recordings for other purposes is a different issue entirely. Certainly, the personal recordings that "Whit the cop" makes to protect himself would not be admissible in criminal proceedings against others, except perhaps for specific criminal actions against Whit himself.

This is somewhat of a compromise. I understand the concern about government excess, dossier building, etc. "Whit the cop" can record for his own protection and use the recordings as any other private citizen. The government cannot use Whit's personal recordings.

It seems straight-forward to me.
12.14.2007 1:51pm
joeroket (www):
In Wa. it is not illegal for a citizen to record an officer in some instances.

http://www.copwatch.org/statevflora.htm

This case reversed a conviction of our privacy laws because:
A. They were public officials
B. They were in public
C. They were acting in thier public duties.
12.14.2007 11:18pm