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Court Case To Test Legality of Recording the Police With Your Cell Phone 384

Posted by Soulskill from the truth-shall-get-you-tazed dept.
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.'"
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Court Case To Test Legality of Recording the Police With Your Cell Phone More

Court Case To Test Legality of Recording the Police With Your Cell Phone

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  • Checks and balances (Score:5, Insightful)

    by Nethemas the Great ( 909900 ) on Friday June 10, 2011 @03:02PM (#36404252)
    It's a good thing the US was founded with the notion of check and balances so as to prevent abuse of power...

    • Re:Checks and balances (Score:4, Insightful)

      by Anonymous Coward on Friday June 10, 2011 @03:08PM (#36404316)

      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.

      • How can anybody even think it might be illegal...? I don't get it.

        • These are secret police

          • Re:Checks and balances (Score:4, Insightful)

            by naz404 ( 1282810 ) on Friday June 10, 2011 @03:27PM (#36404596) Homepage
            The police are public employees, they are salaried with taxes you pay them. Therefore, you are their bosses and they are working on *YOUR* time. You have the right to record and monitor what they do at work.

            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)

              by j00r0m4nc3r ( 959816 ) on Friday June 10, 2011 @04:29PM (#36405332)
              The police are public employees, they are salaried with taxes you pay them. Therefore, you are their bosses and they are working on *YOUR* time. You have the right to record and monitor what they do at work.

              Can I make them come in on Saturday to work on some TPS reports? Oh, and Sunday too...

        • 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)

            by betterunixthanunix ( 980855 ) on Friday June 10, 2011 @03:43PM (#36404784)
            Let this be a lesson to all those people who, when confronted with an overly broad law, say, "Well, yes, you could go after innocent people with this, but the police would not do such thing; they need this law to make it easier for them to get the bad guys." Laws should be narrow, precise, and low in number; nobody should ever be confused about why they are being arrested, and nobody should ever be surprised to find out they have broken a law. The police have far too much power, and far too many ways to justify arresting someone, and we should be talking about ways to solve that problem, rather than making it worse.

            • Re:Checks and balances (Score:4, Insightful)

              by Gerzel ( 240421 ) <brollyferret&gmail,com> on Friday June 10, 2011 @04:20PM (#36405248) Journal

              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)

                by betterunixthanunix ( 980855 ) on Friday June 10, 2011 @04:42PM (#36405490)

                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.

                • 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.

            • 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)

            by account_deleted ( 4530225 ) on Friday June 10, 2011 @07:10PM (#36406986)
            Comment removed based on user account deletion

        • Re:Checks and balances (Score:4)

          by Obfuscant ( 592200 ) on Friday June 10, 2011 @03:47PM (#36404832)

          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.

        • Re: (Score:3)

          by anegg ( 1390659 )

          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

      • 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.

      • Not to mention that most judges are former prosecutors.

        • 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....

          • Is that why when most cases involving cops go to trial they excuse the jury? So it's just the cop, the prosecutor, and a former prosecutor?

    • Re:Checks and balances (Score:4, Insightful)

      by Idbar ( 1034346 ) on Friday June 10, 2011 @03:26PM (#36404588)
      You mean personal checks (or cashier checks from big banks) and well balanced accounts?
    • I dunno if I should mod you funny or insightful and I'm disturbed the the implications of that.

    • Re: (Score:2)

      by PNutts ( 199112 )

      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

    • 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

  • Police have no expectation of privacy (Score:5, Interesting)

    by WillAdams ( 45638 ) on Friday June 10, 2011 @03:04PM (#36404270) Homepage

    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.

    • Re: (Score:2)

      by Nikker ( 749551 )
      What I don't understand is why they wouldn't want as much independent coverage of the incident / whatever as possible. Wouldn't it make it much easier to prove in court as well as save paperwork documenting the scene? Eye witnesses are a very weak link to almost any case having a video or possibly multiple videos of the same event would just give them harder evidence to their case.

      • 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.

      • 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)

          by Lunix Nutcase ( 1092239 ) on Friday June 10, 2011 @03:20PM (#36404496)

          Boohoo. Public officials have no expectation of privacy in a public place. The 1st Circuit already ruled on this years ago.

        • 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.

      • The 'argument' against this type of recording is you don't want the officer thinking twice or three times how something will 'look' before reacting. Ideally you don't want cops reacting 'badly' in the first place, but cops are, as much as they are demonized, human after all and nobody is perfect.

        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

        • 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

          • Re: (Score:3, Insightful)

            by Anonymous Coward

            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.

            • 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.

        • 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

      • Context, it is very easy to lie with photographs. Remember that picture where General Nguyn Ngc Loan executed some guy in Vietnam with his handgun? Did you know that the photographer apologized for taking that picture?

      • What I don't understand is why they wouldn't want as much independent coverage of the incident / whatever as possible.

        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)

          by starfishsystems ( 834319 ) on Friday June 10, 2011 @04:25PM (#36405304) Homepage
          Case in point: Robert Dziekanski [www.cbc.ca], a Polish traveller to Canada who was neglected for several hours in the airport immigration area, and who was then tasered to death by four RCMP officers within a few seconds of their arrival on the scene.

          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.

      • 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.

      • > 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)

      by future assassin ( 639396 ) on Friday June 10, 2011 @03:11PM (#36404378)

      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 do not have an expectation of privacy when carrying out their official duties; private citizens should have an expectation of privacy whenever they are not in a public place. This is an important distinction, necessary to protect us from the sort of tyranny that people in some other countries face, and unfortunately it is a distinction that people frequently forget. We, as citizens, must have the ability to keep our private lives private; this right should only be revoked when the

    • 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).

  • 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!

  • It seems like this is a tough argument, considering that the police have already consented to being recorded by cameras in their cars-- and I wonder if at any point a Mass. driver has officially consented to being recorded by those cameras.
    • Police cameras are exempt from the law.

      • Re:Two-way street (Score:4, Informative)

        by Lunix Nutcase ( 1092239 ) on Friday June 10, 2011 @03:22PM (#36404528)

        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.

    • To be fair, the police cameras are under their control and protected by their lawyers before it is released. And of course the mysterious malfunctions...
    • When I took a photography course some years back, we were given a 5 minute introduction to photography law: it is legal to photograph people in public places. You have no expectation of privacy in public, at least not when it comes to cameras. Why the police would be any different, or why a video recording is any different, is a mystery to me.

    • 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

  • 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)

      by Lunix Nutcase ( 1092239 ) on Friday June 10, 2011 @03:08PM (#36404324)

      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)

        by Ksevio ( 865461 ) on Friday June 10, 2011 @03:21PM (#36404504) Homepage
        The law is for audio recordings, not video only. I know I was pulled over once (light out) and the first thing the officer did was to inform me that he was recording audio and asked if I consented (I don't know what would happen if I didn't....).

        • Yes, I know it is but those dash cams do pick up audio.

        • The proper canned response for LEO's is*:

          My lawyer has advised me not to make any statements or grant any requests without first talking to him.

          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.

    • 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.

  • Then you end up with abuse of them.

    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...

  • What the police do is police business, not yours. Glik should be thankful he wasn't dealing with Officer Bubbles [youtube.com].

  • 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.

  • 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

    • 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)

      by nahdude812 ( 88157 ) * on Friday June 10, 2011 @03:35PM (#36404686) Homepage

      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.

      • 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

  • First Circuit already has precedent on this... (Score:4, Interesting)

    by Lunix Nutcase ( 1092239 ) on Friday June 10, 2011 @03:14PM (#36404394)

    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)

    by Hazel Bergeron ( 2015538 ) on Friday June 10, 2011 @03:17PM (#36404452) Journal

    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."

  • ...another Boston man was arrested for simply watching cops at work and remembering what they did. Charges are pending if it is determined that he actually told someone else what he remembered. Geez. Are the police going to arrest bank or store owners if their build security cameras accidentally record the police doing anything?

    Hey COPS! If you're not doing anything wrong, you've got nothing to hide - remember?

  • At least in this case they didn't arrest him on the sole charge of Resisting Arrest.

    Yes, that actually happens.

  • 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.

    • 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.

  • 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.

    • 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?

  • ...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.

    • As has been pointed out, this will make you obviously anti-police. While you may not be breaking the law, they will not be happy to have you around. They might arrest the guy and press charges just so they can confiscate your cell phone as evidence. I agree with the sentiment, but you are risking legal action and your cell phone for what normally turns out to be nothing. Getting a badge and a gun really does give you the right to be a bully. Proving that such bullying is not in the public interest is expens

  • 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)

    by wcrowe ( 94389 ) on Friday June 10, 2011 @03:55PM (#36404922)

    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)

    by jd2112 ( 1535857 ) on Friday June 10, 2011 @03:56PM (#36404936)
    If you're not doing anything wrong you have nothing to hide.

    At least that's what the police tell me.

  • bogus charges (Score:5, Interesting)

    by Khashishi ( 775369 ) on Friday June 10, 2011 @05:49PM (#36406204) Journal

    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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