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Police fight cellphone recordings

Discussion in 'Cop Talk' started by wandrson, Jan 13, 2010.

  1. wandrson

    wandrson

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    http://www.boston.com/news/local/ma.../12/police_fight_cellphone_recordings/?page=1

    Witnesses taking audio of officers arrested, charged with illegal surveillance

    By Daniel Rowinski, New England Center For Investigative Reporting | January 12, 2010
    Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three police officers struggling to extract a plastic bag from a teenager’s mouth. Thinking their force seemed excessive for a drug arrest, Glik pulled out his cellphone and began recording.
    Within minutes, Glik said, he was in handcuffs.
    “One of the officers asked me whether my phone had audio recording capabilities,’’ Glik, 33, said recently of the incident, which took place in October 2007. Glik acknowledged that it did, and then, he said, “my phone was seized, and I was arrested.’’
    The charge? Illegal electronic surveillance.
    Jon Surmacz, 34, experienced a similar situation. Thinking that Boston police officers were unnecessarily rough while breaking up a holiday party in Brighton he was attending in December 2008, he took out his cellphone and began recording.
    Police confronted Surmacz, a webmaster at Boston University. He was arrested and, like Glik, charged with illegal surveillance.
    There are no hard statistics for video recording arrests. But the experiences of Surmacz and Glik highlight what civil libertarians call a troubling misuse of the state’s wiretapping law to stifle the kind of street-level oversight that cellphone and video technology make possible.
    “The police apparently do not want witnesses to what they do in public,’’ said Sarah Wunsch, a staff attorney with the American Civil Liberties Union of Massachusetts, who helped to get the criminal charges against Surmacz dismissed.
    Boston police spokeswoman Elaine Driscoll rejected the notion that police are abusing the law to block citizen oversight, saying the department trains officers about the wiretap law. “If an individual is inappropriately interfering with an arrest that could cause harm to an officer or another individual, an officer’s primary responsibility is to ensure the safety of the situation,’’ she said.
    In 1968, Massachusetts became a “two-party’’ consent state, one of 12 currently in the country. Two-party consent means that all parties to a conversation must agree to be recorded on a telephone or other audio device; otherwise, the recording of conversation is illegal. The law, intended to protect the privacy rights of individuals, appears to have been triggered by a series of high-profile cases involving private detectives who were recording people without their consent.
    In arresting people such as Glik and Surmacz, police are saying that they have not consented to being recorded, that their privacy rights have therefore been violated, and that the citizen action was criminal.
    “The statute has been misconstrued by Boston police,’’ said June Jensen, the lawyer who represented Glik and succeeded in getting his charges dismissed. The law, she said, does not prohibit public recording of anyone. “You could go to the Boston Common and snap pictures and record if you want; you can do that.’’
    Ever since the police beating of Rodney King in Los Angeles in 1991 was videotaped, and with the advent of media-sharing websites like Facebook and YouTube, the practice of openly recording police activity has become commonplace. But in Massachusetts and other states, the arrests of street videographers, whether they use cellphones or other video technology, offers a dramatic illustration of the collision between new technology and policing practices.
    “Police are not used to ceding power, and these tools are forcing them to cede power,’’ said David Ardia, director of the Citizen Media Law Project at Harvard’s Berkman Center for Internet and Society.
    Ardia said the proliferation of cellphone and other technology has equipped people to record actions in public. “As a society, we should be asking ourselves whether we want to make that into a criminal activity,’’ he said.
    In Pennsylvania, another two-party state, individuals using cellphones to record police activities have also ended up in police custody.
    But one Pennsylvania jurisdiction has reaffirmed individuals’ right to videotape in public. Police in Spring City and East Vincent Township agreed to adopt a written policy confirming the legality of videotaping police while on duty. The policy was hammered out as part of a settlement between authorities and ACLU attorneys representing a Spring City man who had been arrested several times last year for following police and taping them.
    In Massachusetts, Wunsch said Attorney General Martha Coakley and police chiefs should be informing officers not to abuse the law by charging civilians with illegally recording them in public.
    The cases are the courts’ concern, said Coakley spokesman Harry Pierre. “At this time, this office has not issued any advisory or opinion on this issue.’’
    Massachusetts has seen several cases in which civilians were charged criminally with violating the state’s electronic surveillance law for recording police, including a case that was reviewed by the Supreme Judicial Court.
    Michael Hyde, a 31-year-old musician, began secretly recording police after he was stopped in Abington in late 1998 and the encounter turned testy. He then used the recording as the basis for a harassment complaint. The police, in turn, charged Hyde with illegal wiretapping. Focusing on the secret nature of the recording, the SJC upheld the conviction in 2001.
    “Secret tape recording by private individuals has been unequivocally banned, and, unless and until the Legislature changes the statute, what was done here cannot be done lawfully,’’ the SJC ruled in a 4-to-2 decision.
    In a sharply worded dissent, Chief Justice Margaret Marshall criticized the majority view of a law that, in effect, punished citizen watchdogs and allowed police officers to conceal possible misconduct behind a “cloak of privacy.’’
    “Citizens have a particularly important role to play when the official conduct at issue is that of the police,’’ Marshall wrote. “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.’’
    Since that ruling, the outcome of Massachusetts criminal cases involving the recording of police by citizens has turned mainly on this question of secret vs. public recording.
    Jeffrey Manzelli, 46, a Cambridge sound engineer, was convicted of illegal wiretapping and disorderly conduct for recording MBTA police at an antiwar rally on Boston Common in 2002. Though he said he had openly recorded the officer, his conviction was upheld in 2007 on the grounds that he had made the recording using a microphone hidden in the sleeve of his jacket.
    Peter Lowney, 39, a political activist from Newton, was convicted of illegal wiretapping in 2007 after Boston University police accused him of hiding a camera in his coat during a protest on Commonwealth Avenue.
    Charges of illegal wiretapping against documentary filmmaker and citizen journalist Emily Peyton were not prosecuted, however, because she had openly videotaped police arresting an antiwar protester in December 2007 at a Greenfield grocery store plaza, first from the parking lot and then from her car. Likewise with Simon Glik and Jon Surmacz; their cases were eventually dismissed, a key factor being the open way they had used their cellphones.
    Surmacz said he never thought that using his cellphone to record police in public might be a crime. “One of the reasons I got my phone out . . . was from going to YouTube where there are dozens of videos of things like this,’’ said Surmacz, a webmaster at BU who is also a part-time producer at Boston.com.
    It took five months for Surmacz, with the ACLU, to get the charges of illegal wiretapping and disorderly conduct dismissed. Surmacz said he would do it again.
    “Because I didn’t do anything wrong,’’ he said. “Had I recorded an officer saving someone’s life, I almost guarantee you that they wouldn’t have come up to me and say, ‘Hey, you just recorded me saving that person’s life. You’re under arrest.’ ’’
    The New England Center for Investigative Reporting at Boston University is an investigative reporting collaborative. This story was done under the guidance of BU professors Dick Lehr and Mitchell Zuckoff. [​IMG]
     
  2. AngryBassets

    AngryBassets Jagenden Übel

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    I don't care if you record me.

    However, I've heard of officers retaining that cellphone (for the video made during the incident/arrest process) as evidence.
     

  3. wandrson

    wandrson

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    Retaining as evidence seems to make sense.

    I posted this because I was curious if someone in one of these jurisdictions who have prosecuted one of these cases could tell if they have the cameras in their cars that seem to have become popular.
     
  4. pal2511

    pal2511

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    I have two mics recording on my person and one in the xar
     
  5. AngryBassets

    AngryBassets Jagenden Übel

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    It's not illegal in NJ. Now, sticking your cellphone in my face in a bar parking lot and not stepping back when told, because I'm busy trying to get handcuffs on your drunken idiot boyfriend? That's illegal. And nothing is better evidence that you were disorderly/obstructed more than the video on YOUR phone that was a foot from my face, recording me telling you this repeatedly.
     
  6. MeefZah

    MeefZah Cover is Code 3

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    I'm torn.

    One one hand, I understand where the cops are coming from; on the other, arresting someone for videotaping is a gross violation of certain rights.
     
  7. AngryBassets

    AngryBassets Jagenden Übel

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    Not trolling you, but what do you mean? I understand how some can perceive it as being annoying, but if you are smiling and being Officer Professional, all that comes out of that recording is a video testament to that person being a whiny vajayjay:

    [whiny, snooty, entitled college-age turdling with iphone voice]"THAT'S OKAY, F-THESE COPS! I GOT IT ALL ON VIDEO!!![/whiny, snooty, entitled college-age turdling with iphone voice]

    Hell, one of the other sgts had a guy come in to show "the video" of some perceived injustice. As he pulled his phone out, his pipe fell onto the floor.

    Win-win.
     
  8. Imnotascoolasu

    Imnotascoolasu

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    Wait so the law was enacted to keep police from recording citizens but now the shoe is on the other foot and it's injustice? Seems a little hypocritical to complain to me.
     
  9. Patchman

    Patchman Florist

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    No need to be torn. There is no constitutional right to possess a cellphone. And if it's being used to document illegality, it's evidence. How would both the DA and the defense atty know what's contained in the video until they've both examined it? And of course the phone would need to be properly secured so no one tampers with the video contained therein.
     
  10. wandrson

    wandrson

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    I am going to call you on the statement that there is no Constitutional right to possess a cellphone. A cell phone is property and there most certainly is constitutional protections for property. You might be familiar with the phrase "Life, Liberty, and the Pursuit of Happiness" but you might not be aware that it was originally "Life, Liberty, and Estate" where in the original context Estate meant property. The original author even went so far as to claim that property rights were the most basic and fundamental of all rights.
     
  11. Patchman

    Patchman Florist

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    First, what the framers MEANT to write and what they ended up writing in the Constitution are two different things. In fact, I have on good authority that the framers intended to include in the preamble a statement that Sid Patchman and all his issues in perpetuity are entitled to ten-percent of all taxes collected by the Federal government, in perpetuity. But somehow they forgot to write this in the final draft!

    And property referred to real property, such as the person's home or farm. Not the iPod or computers (or those phones with dials or whatever they used) in those days.
     
    Last edited: Jan 13, 2010
  12. wandrson

    wandrson

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    Perhaps you might wish to read their writings. And then the 9th and 10th amendments. Property most certainly did not mean real property, it means what they said property. By your reasoning the contents of a home could be ceased by the government for no reason and without recourse. When you say there is no right to something, it means it can be taken without recourse.
     
  13. Patchman

    Patchman Florist

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    OK, now I know you're wasting my time. Bye.
     
  14. Morris

    Morris CLM

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    Holy carp! Didn't take long for the strange to invade.

    In Washington state, it is not illegal to record an officer in the performance of their duties while they are on-duty and in uniform (audio) so long as you do not obstruct the officer's actions.

    The courts are on the fence as to the issue of validity of seizing recording devices as evidence for a particular event such as described by the OP.
     
  15. mitchshrader

    mitchshrader Deceased

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    the law is lagging behind the technology, and eventually it'll recognize that recording devices are everywhere, and there is NO expectation of privacy, nor of effective censorship of citizens recording police activity. I don't doubt some folks will yet get arrested, possibly even convicted.. but the issue is a dead horse no matter how much you beat it. Recording devices everywhere is the fact, and protesting it won't change it much.
     
  16. steveksux

    steveksux Massive Member

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    If that is illegal, I'd have to think dashboard cameras in squads are illegal also...

    Randy
     
  17. CAcop

    CAcop

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    I really want to put signs on our patrol cars that say, "If you can read this you are being recorded."
     
  18. Sharky7

    Sharky7 Boomshakalaka

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    Depends on the state....Illinois we can only use dashcams for traffic code offenses or incidents starting as such unless we obtain a consent to tape in other situations. We can't just walk up to someone and start a conversation and record it. For interviewing suspects at pd in custody on audio and video we have to obtain consent as well - we can't just record all interviews
     
  19. lawman800

    lawman800 Juris Glocktor

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    It just keeps getting better, don't it?
    I won't stop someone from recording me taking police action in public but I also will seize the video as evidence if I need it for my case to prove up the crime for which I am effecting the arrest. Cases get backed up quite a bit in these parts....
     
  20. Morris

    Morris CLM

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    Here's an example:

    In Washington state, it is illegal to audibly record someone unless you have two party consent. Excluding two party consent, the exceptions are these:

    - (by case law) citizen may record an officer while they are in the performance of their duties
    - (by state law) officers may record both audibly and visually subject on contacts, traffic stops, etc. The caveat has been with a reasonable try at notification that the contact/stop is being recorded.

    As a further example, I conduct a traffic stop and the camera is activated. I approach the car, introduce myself and state, "this contact/traffic stop is being recorded." Whether a person wishes to engage you in conversation is up to them. They retain the right not to speak to you if they want although it is legal for an officer to record.

    Clear as mud, right? Unfortunately, our legislature slaps patches on to state laws without revamping those laws to reflect technology advances.

    Now my head hurts. :)