Court Case To Test Legality of Recording the Police With Your Cell Phone 384
suraj.sun sends this excerpt from Ars Technica:
"If you pull out your cell phone to make a video of police officers arresting a suspect, are you 'secretly recording' them? 'No' seems like the obvious answer, but that's precisely the claim that three police officers made to justify their arrest of a Boston man. In arguments before the US Court of Appeals for the First Circuit on Wednesday, the city also denied the man's claim that his First or Fourth Amendment rights had been violated. The case will be an important test of whether the Constitution protects individuals' right to record the police while they are on duty. Many states have 'one-party notification' wiretapping laws that allow any party to a conversation to secretly record it. But under the strict 'two-party notification' laws in Massachusetts, it's a crime to 'secretly record' audio communications unless 'all parties to such communication' have given their consent. The police arrested Glik for breaking this law. For good measure, they also charged Glik—who did no more than stand a few feet away with his cell phone—with 'aiding the escape of a prisoner' and 'disturbing the peace.'"
Checks and balances (Score:5, Insightful)
Re:Checks and balances (Score:4, Insightful)
Didn't someone already appeal that law? Seems like it, with all the BS going on like this today. I sure hope a judge throws this crap out and displays some anger about this kind of crap, but sadly the cops are probably friends with the prosecutor and he is golf buddies with the judge, and as such checks and balances ends up just being more lip service to keep us minions quiet and paying our taxes.
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How can anybody even think it might be illegal...? I don't get it.
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These are secret police
Re:Checks and balances (Score:4, Insightful)
They're your goddam employees and you have the right to make sure they don't engage in shenanigans on YOUR time.
Moreover, one of the judges in one of the states (forgot which) already ruled that it is legal to record police who are on active duty because during then, they're "in public space", and not subject to the same privacy laws with wiretaps, etc. This was covered in a previous slashdot story.
Re:Checks and balances (Score:4, Funny)
Can I make them come in on Saturday to work on some TPS reports? Oh, and Sunday too...
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You are doing something the policeman on the scene doesn't like. They will try to find a way to make it illegal.
Re:Checks and balances (Score:5, Insightful)
Re:Checks and balances (Score:4, Insightful)
The problem with narrow and precise means that you need more laws to cover all of the things that should, justly, be illegal.
It is a balancing act like so many things in life.
Similar to the US small government arguments. The US will never have a small government, nor should it as it is a large nation. There is a lot that the US government needs to cover and should be doing. While I agree that as a whole it should be reduced there are many places where it should be expanded and many more that should not be reduced.
Re:Checks and balances (Score:5, Insightful)
The problem with narrow and precise means that you need more laws to cover all of the things that should, justly, be illegal.
We are way past that point right now. We live in a world where people can go to prison for possession of certain comic books. You can be arrested and imprisoned for growing a plant. Teenagers have been arrested for photographing themselves. Court cases often come down to arguments about a person's "intent" and not what the person actually did. It is becoming uncommon for defendants to face only one criminal accusation.
As I said, nobody should ever be surprised when they are arrested -- people who break the law should not have any doubt as to whether or not what they are doing is illegal, unless they never had access to a single book or television. "Narrow and precise" does not mean "so extremely narrow that the law is meaningless," it means a legal system with clearly defined boundaries between "legal" and "illegal." There will always been edge cases and situations where it is not entirely clear if a law was broken, which is why we have a system of appeals, but for the most part people should be able to say with confidence that they are not in violation of the law.
While I agree that as a whole it should be reduced there are many places where it should be expanded
Where do you think our criminal code needs to be expanded? I cannot think of any such category of behavior, but maybe I am not creative enough.
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While I agree that as a whole it should be reduced there are many places where it should be expanded
Where do you think our criminal code needs to be expanded? I cannot think of any such category of behavior, but maybe I am not creative enough.
Politics.
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Comic books with drawn pictures of naked underaged persons, I would suspect. The Supreme Court has struck this down on several occasions, but still people rot in prison for it.
The only salient fact he's leaving out is the word "naked".
Sticking your head in the sand won't make the problem go away.
Re:Checks and balances (Score:4, Insightful)
What the hell does this mean "go to prison for possession of certain comic books"
No, that was not an exaggeration:
http://boingboing.net/2009/05/27/manga-collector-face.html [boingboing.net]
http://www.wired.com/threatlevel/2009/05/manga-porn/ [wired.com]
Did you think I was just making it up? Or were you not paying attention to the sorts of laws that have been passed in the United States?
Again I think you are leaving out a couple of facts with this beauty "Teenagers have been arrested for photographing themselves".
No, actually, I left nothing out; just ask these teenagers:
http://www.foxnews.com/story/0,2933,479803,00.html [foxnews.com]
Oh, sorry, that was a Fox News link. Here, something less fair and balanced:
http://www.wired.com/threatlevel/2009/03/aclu-sues-da-ov/ [wired.com]
Note that the three girls who took the photographs -- photographs of themselves -- were arrested, as were the boys who received them. Not one of the people arrested here was over the age of 16.
This "people who break the law should not have any doubt as to whether or not what they are doing is illegal" assertion says more about idiots committing the crime than it does about the law.
Oh yeah? Are you sure that you have never committed a felony? These people were pretty sure too:
http://www.washingtontimes.com/news/2009/oct/05/criminalizing-everyone/ [washingtontimes.com]
Did you remember to check all the paperwork relating to your hobbies? Obviously importing orchids without doing so is something you can go to jail for, right?
there will always be cases of injustice (Score:3)
there will always be cases of injustice but that is no reason to condemn the entire system.
Um, isn't that PRECISELY a reason to condemn the entire system?! Isn't that pretty much the ONLY reason to condemn an entire system?
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I'm not the OP, but...
What the hell does this mean "go to prison for possession of certain comic books" .
Anti-child pornography laws. They should be there to protect actual children from being abused in the creation of it. So of course any photographic CP image should be illegal. However the laws have overstepped the line into thought crime, by making cartoon or computer generated images of this kind also illegal.
"Teenagers have been arrested for photographing themselves".
Another way that the CP laws overstep the mark. They should be there to protect minors. However a child photographing him/herself naked is criminalised. The absolute opposite of
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Although overly-broad laws are a serious problem, the real problem has little to do with them.
The police are not trained in the law. They are trained to a 350 page handbook, and are trained that if they have any doubt that an action is legal, to arrest or fine, and let the Courts sort it out. They are trained to hide behind their badge when they are wrong.
This is a classic economic externality. It costs a policeman or woman nothing to arrest or fine someone they will probably never see again. But doing
Comment removed (Score:5, Interesting)
Re:Checks and balances (Score:5, Insightful)
The legislature has the power to repeal laws, but they are usually too busy making laws...
Re:Checks and balances (Score:4, Insightful)
A good thought there, but, of course, a pipe dream, because there are so many lawyers making laws that it is exactly like putting a fox in charge of the chicken coop. Having said that, though, I have advocated for years that the only amendments to a law should be something that directly applies to and changes the law itself.
Part of the problem with the white elephant of legislation these days is that it is far too easy, and far too common to have a collection of totally non-related laws attached to a law that a lot of people want, to ensure that they all will get passed. We have all seen it happen, and, that is one of the reason we have laws that are 1000+ pages long...
The system is certainly off balance, if not completely broken...yet every side wants to keep it because they can leverage it to their advantage, no matter what might be best for the country...
Re:Checks and balances (Score:4)
How can anybody even think it might be illegal...? I don't get it.
You mean other than there is a law in MASS that says that both parties involved in a recording must give consent for it to be legal?
I'm pretty sure that if a cop's supervisor tells a cop that there is a law that makes something illegal, and he goes to the books and looks it up to verify, he's probably going to think that it is illegal. I know that if a cop tells me something is illegal, and I can go to the statutes and find that yes, there is a statute saying it is illegal, I am going to think it is illegal, too.
I read the law, and I don't think it is a twisted interpretation of what it actually says to believe that secretly recording a police officer is illegal under the provisions as listed. It simply is too broad in defining terms, and you don't get to apply a knowledgable /. kind of definition of things when the law itself contains the definitions.
SHOULD the district court "throw the case out"? Of course not. That's exactly the wrong thing to do. You want a ruling that says "this is nonsense, the law is unconstitutional" or whatever will make the law invalid. Simply throwing the case out will let the lower court decision stand.
Yes, I think it should be legal, too. An obvious exception to the MASS law should be "recording of government employee identified as such while acting under color of authority". The law (http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section99 [malegislature.gov]) does not contain such an exemption, although it does contain many others.
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The police do as much as possible to retain as much control and power over all situations as possible. To the extent to which they have to restrain themselves from using the force, attitude, and their ability to play fast and loose with the law in order to avoid being provably (via photographic, video, and especially A/V recorded evidence) shown to overstep their actual authority in order to be the sole authority in any situation and to take what ever measures they deem most effective to not only remain in
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I'm fairly certain that police in Massachusetts use car-mounted cameras to record the public. Why can't the public record them?
In fact, the only notice that should be required is for the police to be told that "All citizens have the right to record you and you may be subject to such recording at any time you are on the job." That would constitute the notice. If they have trouble remembering it, perhaps the watch officer can repeat it to them every day as they start their shifts.
The idea of "consent" to
Re:Checks and balances (Score:4, Insightful)
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Some have. But it's not a national law: It's state-by-state. Some states have even passed legislation explicitly allowing recording of the police. (I think in other cases the state courts have smacked down the police, and no one's pressed it further.)
Massachusetts hasn't. So it's being an issue there, and because of the way the case was brought up it can be attacked on Constitutional grounds.
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Not to mention that most judges are former prosecutors.
And virtually all judges are lawyers. And lawyers are trained in arguing cases from BOTH sides. It's what they do....
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Re:Checks and balances (Score:4, Insightful)
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It's a good thing the US was founded with the notion of check and balances so as to prevent abuse of power...
I'm not sure if that's sarcasm, so I'll just say constitution, state constitution, elected officials, charges dropped or dismissed, citizen filing suit against police, and federal court not dismissing suit. I'm good with the story so far because I don't expect rank and file police to be constitutional lawers. My hope is this action removes the fog and recording police is legal everywhere and that the police understand it, too. And if it's civil disobedience to record an abuse by the police, then so be it an
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In the event it is deemed you are secretly recording police officers then the exact same argument should be made to have every camera removed from the state. Any traffic cams, police cams, store cams... EVERYTHING! Somebody does something criminal and is caught on tape... hmmm... that's illegal wiretapping. Our judicial system goes out of the way to protect the rights of the criminal, but slaps around the bystander? Push back from another angle and expose the stupidity. Though if I thought this would w
Re:At least you still get a trial hear with a jury (Score:5, Informative)
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Police have no expectation of privacy (Score:5, Interesting)
when performing official duties for the good of the public.
If their supervisor showed up, they'd have to fully disclose everything which they were doing, ditto internal affairs, the police chief / superintendent, or a government functionary whose bailiwick involved the performance of their current duties.
If they have something to hide, which they don't want revealed in court, they need to find some other line of work.
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The problem is that the guy recording them got them on video punching a suspect. Of course they were going to do whatever they can to squelch that.
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The problem is that the video may or may not show full context of the situation - and I'm not talking about someone having edited the recording. Something that may appear excessive may only seem so without seeing the buildup to that situation.
Under the circumstances you describe, the police officer would then have the ability in court to explain that context. Surely it is better to have the police officer explain the context (plausibly) than to forbid any recording of such incidents so that the police won't have to explain the context??
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Re:Police have no expectation of privacy (Score:4, Insightful)
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Because the police and the public are having difficulties adjusting to each other and will soon be filing for a divorce. Just as much as the public has grown to distrust the police, the police as well have grown to distrust the public. Everyone is a potential enemy.
And let's face the hard truth here: no one is filming the police in an attempt to help out the police when they appear in court. Every single one of them is filming the police in an attempt to catch them doing something wrong. The police know
Re:Police have no expectation of privacy (Score:4, Insightful)
Boohoo. Public officials have no expectation of privacy in a public place. The 1st Circuit already ruled on this years ago.
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Ironically, this is indeed a rare case of "if you don't have anything to hide" as 99 times out of 100 the police who object to being recorded are doing something that they wouldn't want internal affairs knowing about. So long as the person videoing the interaction doesn't interfere with police procedures (e.g. walk all over a crime scene because it "looks cool on video") or act belligerent (e.g. threatening police officers arresting a friend while they are videoing the arrest) there shouldn't be a problem.
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It's a valid argument only when it is a valid argument and not valid in the bulk of situations. Which by logic dictates it should be valid none of the time.
It's a lot like the imminent bomb explosion threat
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There's also the argument that gets brought forward that the bystander usually doesn't record the entire encounter. Sometimes what happened (or was visible) a second before means what the policeman is doing is justified to keep the peace. And a phone video clip often leads to a 'trail by media' where the police don't get to present their side of the story.
I'm not a fan of the argument, but it's at least somewhat sane. Like the above, it's only valid a subset of the time, and there are other ways to handl
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There's also the argument that gets brought forward that the bystander usually doesn't record the entire encounter. Sometimes what happened (or was visible) a second before means what the policeman is doing is justified to keep the peace.
Sorry, no. Nothing that happened previously justifies punching a restrained suspect.
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As I said, it only applies a subset of the time. It's probably not applicable in this case, but that won't mean it won't get brought up.
Re:Police have no expectation of privacy (Score:5, Insightful)
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The same comment comes up about police having to account for shots fired and being afraid to pull their weapon.
I'm glad when the police are afraid to pull their weapons. We don't need random shootings without accountability.
As I said to someone else recently, believing we shouldn't keep police officers in check is like not having a border patrol because most citizens are good people.
The vast majority of people aren't committing crimes, and yet we have the police driving down the street just in case. Guess
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So there's nothing to dispute their version of events, and to make sure that when they do break the law, they can't get prosecuted for it.
They'll say they don't want snippets taken out of context, or that it's unfair to them or whatever ... but mostly this is about covering their own asses, and using their powers to intimidate the population from monitoring them.
Not all cops are jackbooted t
Re:Police have no expectation of privacy (Score:5, Informative)
The RCMP confiscated this video and only released it after enormous public pressure. Imagine what would have happened without this evidence. As it was, the police failed to separately debrief those officers in order to plausibly minimize the appearance of collusion. The same four officers are now charged with perjury after telling a fabricated story in which Dziekanski "attacked them with a stapler." This is the story which the RCMP administration vigorously defended and then ultimately abandoned - all at public cost.
During the inquiry, the RCMP introduced massive procedural delays upon request to produce the internal documents recorded as a result of the incident. After documents were finally released, they were found to be incomplete. Significant among these, a police email suggested the officers made plans to taser Dziekanski even before they saw him. The RCMP lawyer eventually withdrew in tears after acknowledging the omission.
This is what the police did in the face of independent evidence. Imagine what would have happened without this video as evidence.
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Just for argument's sale, let's imagine that standard police operating procedure is regularly corrupt and extra-judicial. Then this response would be the logical conclusion.
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> What I don't understand is why they wouldn't want as much independent coverage of the incident / whatever as possible.
Because they want to have the option to lie about it, obviously.
Re:Police have no expectation of privacy (Score:4, Insightful)
If they got nothing to hide then they have nothing to worry about. Isn't that the moto all police forces want you to live by?
Agents of the government versus private citizens (Score:2)
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The official duties part is totally unnecessary. The judges have to realize these laws are broken, if they are upheld, simply taking a video camera to record your kid at the park would be an illegal act (with some ridiculously heavy penalties associated with it in some states).
Re:Police have no expectation of privacy (Score:4, Insightful)
The issue with taping your kid at the park is that you're going to incidentally record other people in the background. Did you specifically obtain consent from each of them, or did you reasonably assume that they could see you were making a recording and therefore it was not a secret recording?
Nothing to see here (Score:2)
There is no reason to post on this subject. And if anyone does WE WILL BUST YOUR GODDAMN HEADS, YOU PINKO FUCKS! Now GET OUT OF THE CAR!
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YOU PINKO FUCKS!
What is this, the late 70's/early 80's? Who says 'pinko' anymore??
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I'm talking bout Shaft.
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Oh, smart guy huh? Well, let's see how smart you are in a jail cell.
Two-way street (Score:2)
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Re:Two-way street (Score:4, Informative)
And police officers are exempt from this wiretapping law as well despite what these asshat cops and Boston think. Public officials, in this instance police officers, have NO expectation of privacy in a public place. There is already relevant case law from this very same circuit court to back this up.
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Expectation of Privacy (Score:2)
I am not a lawyer. But I think it is more than that. The same laws that allow people to video or photograph things going on in public [krages.com] should apply unless the police are doing something in a place that allows them an expectation of privacy. Otherwise they are in public. If I am correct, I believe that if you video or take pictures in public, people cannot come after you monetarily since they had no expectation of privacy.
In Canada, the supreme court ruled (and this is my understanding of it) that if there
If they have nothing to hide? (Score:2)
So getting freedom fondled by the TSA is okay, but recording official agents on official business representing the government is a no go?
Yeah, right...
Re:If they have nothing to hide? (Score:4, Insightful)
Especially when I doubt any of these same police officers ask consent of the drivers they record with their dashboard cams.
Re:If they have nothing to hide? (Score:4, Informative)
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Yes, I know it is but those dash cams do pick up audio.
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The reason I use this is because I know I'm too stupid to understand the ramifications of any question or request the LEO makes.
*I'm not a lawyer, and this isn't legal advice. You should talk to a lawyer about these kinds of things. Seriously.
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That's what puzzles me.
I thought the intent of the one-party notification laws was with regard to otherwise private communication. Recording someone in a public location, paid for by the taxpayers cannot possibly qualify as private communication...
I guess that's about to be tested.
When you right overly broad laws (Score:2)
The police are using a law not designed for them. They know it, and the writers knew it, but that didn't stop them from using it for purposes for which it was not intended. Hopefully the court recognizes this too...
Watch yourself (Score:2)
Other charges (Score:2)
How was he 'aiding the escape of a prisoner' and 'disturbing the peace?'
Did the "prisoner" get away because the police had to chase him down and confiscate his camera? How would it be his fault if they let the "prisoner" go (yes, I know they didn't let anyone go...)
Also, disturbing what peace? It seemed rather non-peaceful there.
recording the police should be a right (Score:2)
and should be encouraged
additionally, all the video in patrol cars, street lights, intersections...
we pay for that, and there should be a right to access those feeds if we pay a small fee and fill out some paperwork
i don't understand a world where the police have anything to fear by the truth being shown
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Recording public officials on public property was already upheld by the 1st Circuit back in a case in 1999. One just has to hope that the judges remember that.
Re:recording the police should be a right (Score:4, Insightful)
Agreed, and in addition, the destruction or attempted destruction of civilian video of law enforcement activity by any interested party (including government agents or subjects of the police activity) should be considered destruction of evidence, and treated accordingly. It should also be possible to subpoena the contents of this video by any interested party.
Patrol car video should continue recording for at least 10 minutes after the stop recording event happens (no turning the camera off and on during a stop), and it should be illegal for a police officer to intentionally attempt to prevent the recording via any means.
In sort, recordings on both sides should be used to protect either party of a police action, not just the police officer.
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exactly. we're moving from a world of he said/ she said with no proof either way, to a world of: "there it is on video your honor". a much better world
until the day that movie-quality special effects become the domain of every 13 year old. then video can't be trusted anymore. then we're really screwed
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authority is unnecessary in a world where people exercise responsibility as much as they demand freedom. true freedom does not exist in a place where people take no responsibility
therefore it is the essential tragedy of our existence that authority is necessary, with all the evils that authority brings, because too many of us are just irresponsible. responsibility must be offered. if it isn't offered, it must be imposed. because lack of personal responsibility is pretty much the root of all evil. authority
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i'm saving this comment and putting it in your permanent file ;-)
First Circuit already has precedent on this... (Score:4, Interesting)
Hopefully the First Circuit court doesn't forget their 1999 ruling in Iacobucci v. Boulter [google.com] where the upheld the right to record public figures on public property. But according to the article the judges seem to find the reasoning of the city to be quite absurd so that is a good sign.
civil disobedience (Score:4)
In the event that the outcome goes the wrong way, all that's needed is for enough campaign groups on both sides of the political spectrum to encourage their supporters to routinely record the police whenever they see them, providing they are in groups of more than some particular size and providing their camera streams to a remote server.
R v Sussex Justices, ex parte McCarthy brought the saying to English law that it is not enough that justice must be done - it must also be seen to be done. The principle is about impartiality and appeared before video cameras, but surely preventing or destroying any recording of a police officer acting in public under colour of law is, "creat[ing] a suspicion that there has been an improper interference with the course of justice."
In related news... (Score:2)
Hey COPS! If you're not doing anything wrong, you've got nothing to hide - remember?
In defense of these police officers... (Score:2)
Yes, that actually happens.
I sympathize (Score:2)
I sympathize with the guy, and was going to say that this will be an important case in turning back the overweening power of government, but will it?
The fact is, if he's in a state that REQUIRES the consent of both parties in a conversation to be recorded, and he didn't get the consent of both parties, it may be as simple as that.
I'm saying that the 2-party-consent law is BS, and that's the first thing that needs to be changed.
Nevertheless, I hope he wins.
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The fact is, if he's in a state that REQUIRES the consent of both parties in a conversation to be recorded, and he didn't get the consent of both parties, it may be as simple as that.
Yes, but there is already relevant case law showing that recording public officials in public is allowed. This is federal case law that will trump this stupid law.
Double edged sword ! (Score:2)
Err ... when the Taxachusett's cops (or any others in two-party consent-to-tape state) question/interrogate someone, do they not tape the event? Absent consent, specific legal exemption or a warrent, aren't they violating the two-party statute?
There are some things you are better off losing.
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No, they aren't violating it, because that situation is explicitly in the law as allowed.
What, you don't think they wrote the law with those loopholes in mind?
Everyone with a cellphone camera... (Score:2)
...needs to start recording cops at every opportunity. Do this even if the cop is just standing on the corner. Make sure they see you.
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And More (Score:2)
Good overview of several similar cases coming up in Illinois, and their national implications:
http://www.huffingtonpost.com/2011/06/08/chicago-district-attorney-recording-bad-cops_n_872921.html [huffingtonpost.com]
Does the press get an exemption? (Score:4, Interesting)
If a news crew happen to be in the area and record what happens, are they violating the law also? Perhaps some legal expert can explain the difference to me.
Why should the police be worried? (Score:3)
At least that's what the police tell me.
bogus charges (Score:5, Interesting)
The charges were dropped, of course, since they had no chance of standing up in court. The point was to intimidate the guy and put him in jail. The problem is that cops can just arrest you for a bogus charge and then drop the charges later. You get screwed anyway.
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The charges against him were dropped. This is a case brought by him against the City and the police.
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Of course, once you ask for consent it's not secret anymore I suppose...
The point here is that the guy was pointing the phone right at the cops, and the cops are arguing that's not sufficient to tell that he's recording.