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"Wiretapping" Charges May Be Oddest Ever Recorded 439

Posted by CmdrTaco
from the tap-into-the-future dept.
netbuzz writes "Guy kicks up a fuss at a Massachusetts car-repair shop, employees call the police, guy allegedly gives them a hard time, too, and they charge the fellow with a variety of expectable charges: disorderly conduct, resisting arrest ... and 'unlawful wiretapping and possessing a device for wiretapping.' The device? A digital voice recorder. Massachusetts is one of only 12 states that prohibit the recording of a conversation unless all parties to it are aware it's being recorded."
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'Wiretapping' Charges May Be Oddest Ever Recorded

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  • What, no link? (Score:5, Informative)

    by richy freeway (623503) * on Thursday September 10, 2009 @09:48AM (#29378591)
    Link to source?
  • weird mix (Score:5, Informative)

    by prgrmr (568806) on Thursday September 10, 2009 @09:52AM (#29378651) Journal
    From http://www.articlesbase.com/national,-state,-local-articles/audio-recording-laws-in-the-us-431017.html [articlesbase.com]: "The 12 states which definitely require all parties to a conversation to consent before it can be recorded are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington"

    Possibly the weirdest mix of red, blue, coastal, and fly-over states.
  • Re:Wiretapping? (Score:4, Informative)

    by prgrmr (568806) on Thursday September 10, 2009 @10:00AM (#29378765) Journal
    The law is Chapter 272: Section 99. Interception of wire and oral communications" [mass.gov]. Section B, paragraph 4 has the pertinent details:

    The term interception means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein."
  • by nolife (233813) on Thursday September 10, 2009 @10:01AM (#29378787) Homepage Journal

    The laws for audio and video are different in many areas. I assume that is why most video surveillance gear does not have audio capability.

    A quick google search turned this up that gives one example
    http://w3.uchastings.edu/plri/96-97tex/video.htm [uchastings.edu]

  • Re:What, no link? (Score:5, Informative)

    by Chapter80 (926879) on Thursday September 10, 2009 @10:02AM (#29378799)

    From Wikipedia: [wikipedia.org]

    Two party consent states

    Twelve states currently require that BOTH or ALL parties consent to the recording. These states are:

            * California
            * Connecticut
            * Florida
            * Illinois
            * Maryland
            * Massachusetts
            * Michigan
            * Montana
            * Nevada
            * New Hampshire
            * Pennsylvania
            * Washington

    If you HATE that your state is on that list, get it changed! It's a wiki, you can change it yourself! :-)

  • Re:!wiretap (Score:5, Informative)

    by blueg3 (192743) on Thursday September 10, 2009 @10:08AM (#29378871)

    The law never uses the term wiretap: Interception of wire and oral communications [mass.gov]. Lawmakers can hardly be held responsible for the logical consequences of what other people choose to call things after the fact.

  • Re:!wiretap (Score:5, Informative)

    by Theaetetus (590071) <theaetetus...slashdot@@@gmail...com> on Thursday September 10, 2009 @10:12AM (#29378937) Homepage Journal

    Why can't the legal system use common sense. Simply recording something is not the same as a wiretap. A wiretap implies access to conversations through some sort of technological loophole or exploit and is usually long term. If this is to be illegal then the law should refer to unlawful recording without consent.

    The law in question is Chapter 272: Section 99. "Interception of wire and oral communications".
    So, yeah, the legal system doesn't always use common sense, but this isn't a great example for you.

    Also, you propose "unlawful recording without consent" - that's not right either. Massachusetts doesn't require consent to be recorded, just knowledge. So I can say to you "I'm recording this conversation," and you can say, "no, I don't consent, turn off the recorder," and it's irrelevant. I can keep recording and I can use the recording in any way I see fit. Your consent is immaterial.

  • Re:weird mix (Score:3, Informative)

    by Anonymous Coward on Thursday September 10, 2009 @10:13AM (#29378945)

    "...one Michigan Court has ruled that a participant in a private conversation may record it without violating the statute because the statutory term "eavesdrop" refers only to overhearing or recording the private conversations of others. See Sullivan v. Gray, 342 N.W. 2d 58, 60-61 (Mich. Ct. App. 1982). "
    http://www.citmedialaw.org/legal-guide/michigan-recording-law [citmedialaw.org]

    (Yet to be tested by the Michigan Supreme Court)

  • Re:Lie to me! (Score:5, Informative)

    by Shakrai (717556) on Thursday September 10, 2009 @10:26AM (#29379121) Journal

    These days the cops make all sorts of spurious charges and the DA plea bargains the charges down. I'll bet he pays a few huundred bucks fine for a misdemeanor.

    That's not a real improvement. Even a misdemeanor record will hurt your employment viability/ability to get a security clearance/ability to get a concealed carry permit (in some states)/ability to get professional licenses/etc/etc.

    When I got charged with felonies I didn't commit they offered me a plea bargain down to a misdemeanor. I told them to go to hell (actually my lawyer did but that's another matter) and fought it all the way to the Grand Jury that refused to indict me. Cost me a lot more money but at least I came out of it without a criminal record.

  • Re:What, no link? (Score:5, Informative)

    by FiloEleven (602040) on Thursday September 10, 2009 @10:36AM (#29379243)

    California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, Washington

    "Filter error: That's an awful long string of letters there."

  • State by State guide (Score:2, Informative)

    by modestgeek (1449921) on Thursday September 10, 2009 @10:45AM (#29379377)
    Here is a state by state guide.
    http://www.rcfp.org/taping/states.html [rcfp.org]
  • by Reverberant (303566) on Thursday September 10, 2009 @10:53AM (#29379491) Homepage

    There was a case [ajr.org] before the Mass Supreme Judicial Court about 10 years ago where a motorist was stopped by the police. The motorist felt he was being singled-out unfairly so he secretly audio recorded the encounters. A few days later he went to the police station to file a formal complaint against the officers and submitted his recording as evidence. He wound up being arrested, charged and found responsible for violating the wiretap statute. The defendant appealed the decision up to the SJC and lost there.

    I've always been torn up a little about the wiretap statute. I think it's not totally unreasonable to have some measure of protection in citizen-to-citizen interactions, especially in this age of Youtube. However I've always felt there should be an exception to this rule for recording municipal and state employees (including police) acting in their official capacity.

    FWIW, there was an attempt to change the law to make an exception for recording police officers but (as one might expect) opposition from police unions killed it.

  • Re:What, no link? (Score:3, Informative)

    by Lumpy (12016) on Thursday September 10, 2009 @11:07AM (#29379697) Homepage

    WRONG. Michigan requires only ONE party to know it's being taped. It's how my recordings of my ex wife were admissible in court.

  • Re:Street Cred (Score:3, Informative)

    by CorporateSuit (1319461) on Thursday September 10, 2009 @11:19AM (#29379821)
    Who modded this troll? It's informative.

    Cops want one thing, most of all, when approaching a situation: To get home tonight, safely. If you go threatening them or their family, you're attacking this hope. If you give them reason to believe you're holding the capacity to catch them offguard or blindside them, you're attacking this hope. That's why when you get pulled over for speeding, you put your hands on top of your steering wheel where the cop can see them. When the boys in blue (not IBM) come knocking at your door, you be the one to make them see the situation is safe. You do not need to surrender any rights in order to do this, you simply need to accomodate them as human beings. If they realize that you're under control, they're under control, and it's someone else steering things toward danger, they will attempt to eliminate that threat by throwing the book at that person.

    There are too many cops who view their badge as a sign of power and want to remind you about that. You don't have to show them subservience, but don't engage them in chest thumping or they'll see to it that you lose. If nothing else, if they're doing something wrong, report them immediately after the altercation to your district attorney. My friend caused several crooked cops to lose their jobs and their ability to ever be cops again in his state after they cuffed him and sexually harassed his girlfriend. He called a retired police chief, who showed up in street clothes. The ex-chief eavesdropped on the cops talking to the girl, approached the cops, asked them what the two had done, and they told him to get lost or they'll cuff him. He reported them to the DA, and that was the end of their careers in law enforcement.
  • by Moraelin (679338) on Thursday September 10, 2009 @11:54AM (#29380175) Journal

    Except you too don't seem to understand what that quote really meant.

    Richelieu needed those 6 lines written by the hand of a person, so he could forge evidence of some crime in the handwriting of some person.

    To that end, it doesn't matter at all how many laws there actually are, and how many things are illegal. As long as there's at least one single thing that's illegal, say, murder (I think we can agree that there's no reason to make murder legal) Richelieu could still forge a letter in your writing when you say you're the one who committed some recent murder. Then you'd get tortured until you confess, and hang for it.

    It's not about too many or too few laws. It's about abuse of power, really.

    Yes, even he couldn't come out and say out loud "I'll forge a pact with the devil in his handwriting", hence the "I will find something" euphemism. But the process of "finding something" actually ended up being more like "hey, looky, the handwriting is exactly like this pact with the devil we just for... err.. had delivered to us by a repenting sinner who stole it from Satan's own desk drawer."

    And if you think the above is just hyperbole, think again. Historically, Father Grandier (an opponent and critic of Richelieu) was waterboarded and exected for a pact with the devil, in his handwriting and signed by him in blood, which someone supposedly stole from none other than the Devil himself. Literally.

    That was the kind of "finding something that will hang him" that Richelieu actually did.

  • Re:Lie to me! (Score:3, Informative)

    by Shakrai (717556) on Thursday September 10, 2009 @12:47PM (#29380699) Journal

    Maybe it's time to make the state pay for your defense when you're aquitted?

    I don't know about that. The law of unintended consequences will rear it's ugly head. I don't have many ill feelings about my trip through the legal system. My case basically boiled down to a "he said/she said" situation and the DA used the only tool at his disposal (the grand jury) to try and figure out what had really transpired. Once it became apparent that the people testifying against me had an axe to grind and the "evidence" they offered the police wasn't worth the paper it was printed on the grand jury did the right thing and declined to indict me.

    If anything my anger would be directed at the people who tried to send me up the river for a crime I didn't commit. If they had any money I would have sued them all once the criminal matter was concluded but they were all flat broke and it would have been a waste of my time. Nothing much to do about it other than put it down as a life lesson and choose my "friends" more carefully in the future.

  • Re:"only 12 states" (Score:2, Informative)

    by deftmonkey (1624253) on Thursday September 10, 2009 @02:29PM (#29381903)
    Yeah, and according to population estimates here http://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_population [wikipedia.org] those 12 states contain just under 40% of the U.S. population.
  • Re:Lie to me! (Score:3, Informative)

    by triffid_98 (899609) on Thursday September 10, 2009 @02:43PM (#29382023)
    Actually, if you call from Canada then you and whomever you are calling can be legally recorded in any state, since that falls under federal jurisdiction. Thanks? to the homeland security brigade, it doesn't require a warrant or notification of any kind.

    As for whether you can legally record said conversation, IANAL, but I would imagine it also falls under federal and not state law.

    Does anybody know what jurisdiction a telephone conversation is deemed to take place in? If I call from Canada to California, and record the conversation without notification or approval, am I in risk of arrest if I step foot in California? What if I record a cell phone conversation where my cell phone is "homed" in Canada?

  • Re:What, no link? (Score:3, Informative)

    by amicusNYCL (1538833) on Thursday September 10, 2009 @03:13PM (#29382399)

    WRONG. Michigan requires only ONE party to know it's being taped.

    That's not what this says:

    http://www.citmedialaw.org/legal-guide/michigan-recording-law [citmedialaw.org]

    Michigan law makes it a crime to "use[] any device to eavesdrop upon [a] conversation without the consent of all parties." This looks like an "all party consent" law, but one Michigan Court has ruled that a participant in a private conversation may record it without violating the statute because the statutory term "eavesdrop" refers only to overhearing or recording the private conversations of others. The Michigan Supreme Court has not yet ruled on this question, so it is not clear whether you may record a conversation or phone call if you are a party to it. But, if you plan on recording a conversation to which you are not a party, you must get the consent of all parties to that conversation.

    Also, from the horse's mouth:

    http://legislature.mi.gov/doc.aspx?mcl-750-539c [mi.gov]

    Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto ... is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.

  • Re:Lie to me! (Score:3, Informative)

    by mcgrew (92797) * on Friday September 11, 2009 @09:24AM (#29389031) Homepage Journal

    I don't know what the consequences are for lying when a cop asks if you have anything sharp in your pockets during a search, but I'd be willing to bet it qualifies as a "legal order" to give a truthful answer.

    Lying to a cop will net obstruction of justice charges. I see it in the newspaper all the time.

  • Re:Lie to me! (Score:2, Informative)

    by bsa3 (200) <brad@@@facefault...org> on Friday September 11, 2009 @03:33PM (#29393387) Homepage

    Yes. It was a civil case rather than a criminal one, but Food Lion won against ABC in Food Lion v. Capital Cities/ABC. On the other hand, half of the verdict was reversed on appeal. On the gripping hand, the portion of the verdict that was sustained awarded FL a whopping $2.00.

    4th Circuit Court of Appeals case number 97-2492. (My access to LN is broken so I'm not going to provide the West cite. Frakking West.)

  • Re:Lie to me! (Score:3, Informative)

    by bill_mcgonigle (4333) * on Sunday September 13, 2009 @08:31PM (#29409345) Homepage Journal

    There is no other reason I can't record a conversation in a public place except that the politicians don't want their lies revealed.

    The police in NH hide behind this law. They've prosecuted a man who had a surveillance system in his house when a police officer misbehaved.

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