Leave a Message, Go To Jail

Okian Warrior writes "A man in Weare, New Hampshire was charged with felony wiretapping for recording the police during a traffic stop — based on a cell phone call he made as an officer approached his vehicle. From the article: Police considered it wiretapping because the call was being recorded by a voice mail service without the officer's consent."

Comments

live free or die, eh?

[Anonymous Coward]

gotta love NH.

Make it clear to your DA

[Zaphod-AVA]

If you believe that use of the wiretapping law in instances like this is abuse, make sure your district attorney knows that prosecuting these cases means you will do your best to get a different person into their office next election.

Re:Make it clear to your DA

[Sarten-X]

That would require being an active citizen. It's much easier to just post on Slashdot talking about how elected officials are all corrupt and evil members of the Illuminati.

Re:Make it clear to your DA

[hedwards]

It's not abuse, it's almost certain to be the natural extension of the law. The laws on wiretapping don't generally specify the methods that are used to do the actual recording, so an audio recording of any sort is equal to any other. If you're in a 2 party consent state, then this sort of prosecution is to be expected, if the person did the recording, which it sounds like he did, then he'll end up being charged and likely convicted.

There isn't anything inherently abusive about it, the statutes are there for everybody to read and if you're going to record somebody without their consent then you need to be really careful that you don't violate the law.

Now, whether the statute itself is reasonable or in this instance is within the protection of the constitution is a different matter all together. This seems a bit overly strict and probably not what the people writing the law really had in mind.

Re:Make it clear to your DA

[cob666]

It's not abuse, it's almost certain to be the natural extension of the law. The laws on wiretapping don't generally specify the methods that are used to do the actual recording, so an audio recording of any sort is equal to any other. If you're in a 2 party consent state, then this sort of prosecution is to be expected, if the person did the recording, which it sounds like he did, then he'll end up being charged and likely convicted.

By your logic, if I am in line at Dunkin Donuts and the person in front of me (Joe) is on the phone leaving a message while I'm talking to my friend then Joe is guilty of illegal wiretapping.

Re:Make it clear to your DA

[morari]

No, that would require a working government.

Re:Make it clear to your DA

[Chibi Merrow]

A public official has no expectation of privacy while going about their official duties... Believing anything else is insanity.

Re:Make it clear to your DA

[joebagodonuts]

1 The charge itself is effectively a punishment.

2 The Wiretap statute doesn't apply.

Abuse.

Cops like to do this to scare people from recording them. Many of the instances I've read about, this ends up being thrown out. They want to cover their ass, rather than serve and protect. This type of "scope creep" should be strongly discouraged.

When you use the phrase "natural extension" of a law; I can't help thinking that makes it whimsical. "The law is what I SAY it is!"

Re:Make it clear to your DA

[cdrguru]

For the most part the police recording statues and the enforcement of them is rooted in the idea that the person "in conference" with the police or being arrested is actually deserving of some kind of privacy. If it is legal to photograph and record the police when they are talking to you, then it is equally legal to photograph and record the police when they are arresting your neighbor - at least that is my understanding of how these laws came to be and how they are being enforced.

Of course, the corrallary is also true then, that you can be photographed and recorded when you are being stopped for a red light violation. And in the US there are few restrictions on what you can do with a photograph once has been taken. This means that having it appear in the local 10-page newspaper with the caption "Dangerous Criminal Arrested" when it was a traffic stop is perfectly OK. Of course, you might get the newpaper to print a retraction on page 8, but why would anyone look at that?

Further, today with Internet your picture and recording can end up in the hands of people worldwide.

So, think about exactly what you want. Is photographing the police and recording them something that is OK? Fine, then get the laws changed. But you don't get to decide that it is OK for you to do it but not anyone else. I don't think you get to say it is OK for the person the police are focusing their attention on right then to do it but not anyone else that happens by. This would effectively mean that any interaction with the police is public, which today it is not.

Re:Make it clear to your DA

[Gutboy]

It's a lot harder for them to 'lose' the recording if they do something wrong when you do the recording.

Re:Make it clear to your DA

[russotto]

It's not abuse, it's almost certain to be the natural extension of the law. The laws on wiretapping don't generally specify the methods that are used to do the actual recording, so an audio recording of any sort is equal to any other. If you're in a 2 party consent state, then this sort of prosecution is to be expected, if the person did the recording, which it sounds like he did, then he'll end up being charged and likely convicted.

Actually, these laws having been around for a while, nuances like this HAVE been worked out. Both the question of whether communication during a traffic stop is a communication subject to the law, and whether or not an incidental interception like this is covered. Even if they've been worked out in a way which is not to the cops favor, however, the cops will keep arresting based on them, because there's no cost to them to do so. Thus, the cops make their own law regardless of what legislators or judges actually say. Until cops start getting serious penalties, meaning dismissal AND jail time, for doing this sort of thing, they'll keep doing it. Without looking at the case law (which I don't have access to), there's a few problems with the cop's point of view. The second-biggest is this:

II. "Oral communication'' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. III. "Intercept'' means the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of any electronic, mechanical, or other device.

If you're talking to someone who is openly using a cell phone, you cannot reasonably justify an expectation that what you say will not reach the other party in the conversation. Since it's an interception whether or not the other party is recording, it doesn't matter that he had voice mail on the other end. The biggest, however, is this one:

IV. "Electronic, mechanical, or other device'' means any device or apparatus which can be used to intercept a telecommunication or oral communication other than: (a) Any telephone or telegraph instrument, equipment, facility or any component thereof: (1) Furnished to the subscriber or user by a communication carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business in accordance with applicable provisions of telephone and telegraph company rules and regulations, as approved by the public utilities commission;

That's right: telephone equipment is specifically excluded. Assuming his voicemail was provided by his carrier, that's excluded too. He's innocent by black-letter law, and the cops are committing a clear abuse by arresting him under the circumstances.

Re:Make it clear to your DA

[Chibi Merrow]

Where does the Constitution give the government the right to stop me?

Re:Make it clear to your DA

[Jane Q. Public]

"If you're in a 2 party consent state, then this sort of prosecution is to be expected, if the person did the recording, which it sounds like he did, then he'll end up being charged and likely convicted."

Just plain wrong.

In nearly every state -- including those with "all party" (not "2 party") consent laws -- it is only illegal to record if the other party has not given permission, AND that party has a reasonable expectation of privacy!!!

When events occur in public, nobody has "a reasonable expectation of privacy". That is not just my opinion, that has been the consistent court ruling. There have probably been a few redneck judges who have deviated from this precedent, but if so they are in the minority.

Further, if the policeman has a dashboard camera that is running (most of the time these days during a traffic stop), then even if it did not take place on the public streets, the officer still has no reasonable expectation of privacy, because he knows the events are being recorded (usually with sound via the officer's radio).

So, in almost all parts of the United States, it is legal to record the police while they are on duty, at least in public. And not just video, but sound as well. And that has also been the consistent ruling by judges when cases like this have gone to court. Municipalities all around the United States have been having to pay heavy damages for false prosecution and rights violations when people have gotten charged with crimes for recording.

Just as an aside: collection agencies and other such entities also do not have a reasonable expectation of privacy when they begin a conversation with a live or recorded statement that "this conversation may be recorded for quality assurance purposes" or the like. Record away on your end. And then use it in court against them if the situation arises.

Re:America, land of the "free".

[Zapotek]

Good one mate! That's what I call British humour!
PS. I live in the UK too and I have to keep my blinds shut due to the traffic camera firmly pointed towards my bedroom window.

How could it be wiretapping?

[v(*_*)vvvv]

Unless they were on private property? Even if the car is considered private property, unless the officer was sitting in the passenger seat, anyone can record anything they want anywhere if it is in public. That is the premise for most all security cameras and recordings anywhere ever.

Re:How could it be wiretapping?

[b4upoo]

It is not recording video that gives the law entry into most situations. It is recording voice. Security systems are usually video only. This is probably frightened, corrupt, public officials fearing it is too easy to catch them in their corruption if voice recording is allowed. All people should have the right to covertly record voice and video anywhere at anytime. Anything outside the walls of their home is public by definition.

Double standard?

[Shoten]

That's odd...because many (if not most) states have systems whereby the actions in front of the car are recorded on video, and audio is captured from a microphone on the officer. The basis for this not needing a warrant is common law precedent that during a traffic stop there is no expectation of privacy...so how is there an expectation of privacy if it's the person being stopped who does the recording?

Only seems to apply to police

[Anonymous Coward]

Funny how every time I hear of a case like this it's a cop being recorded. Since they are public servants shouldn't it be legal to record them if they are on duty? This is strictly about them not wanting records when they do something wrong. With current technology I think they should have at least audio recording of on duty police officers. It would be valuable evidence that would help back up the cops testimony. I think it shows how often there is wrong doing by cops given how violently opposed they are to recordings. I still remember the video taping of a cop slamming a kid into the trunk of a car in LA. They made all sorts of excuses but it was inexcusable behavior. The kid was handcuffed and unconscious when he got slammed in the trunk. It actually woke him up when he hit the car after they beat him unconscious. His crime? He was filling up the car while his father sat inside. It was a case of mistaken identity but the cops consider everyone guilty until proven innocent. FYI I've got two family members that were cops but I also lived 25 years in LA and had some very bad experiences with them.

How stupid.

[Renraku]

Wiretap, noun - an act or instance of tapping telephone or telegraph wires for evidence or other information. No wiretapping was involved. Recording in public is 100% legal in all jurisdictions if there is no reasonable expectation to privacy. Police officers do not have an expectation to privacy whenever they pull someone over in public. How the hell is this even a case? Oh, wait, gotta protect their own. Gotcha.

Re:America, land of the "free".

[darkpixel2k]

Because when I climb 5 meter tall poles with wire-cutters in my teeth people tend to freak out.

In rural America, we just make paper mache eggs and dress up as the easter bunny. C'mon UK--exercise your right to dissent.

Police abuse, business as usual

[billcopc]

Why is it that the police, aka public servants, are elevated to near untouchable status with these discriminatory laws ?

If you work for the government, be it federal, provincial/state or municipal, your actions are liable to be scrutinized by the public. Police should not be an exception. They get too many "magic rights" that allow them to dominate the public they were hired to serve. If cops weren't wrongly treated as superheroes in the law, they might start behaving a little less like spoiled bullies and more like human beings again. And I dare to dream that the career would attract a lower proportion of psychopaths (seriously, look it up if you don't believe me).

Re:Consent

[macraig]

I further find it deeply disturbing that some citizens have been fighting tooth and nail to preserve the right to carry concealed firearms, yet seemingly no one has been fighting to preserve the right of citizens to protect themselves by carrying concealed recording devices. That SHOULD be a right. Instead we've had these so-called wiretapping laws in place for decades that prohibit it.

Which would you rather have: a concealed weapon to shoot the bad cop, only to face accusations you can't refute in the aftermath, or a concealed recording device to catch the bastard red-handed in the act? You might need both, but we only have laws that protect ONE (in some places) and not the other .

Re:Really?

[TheABomb]

If the common man that that healthy a level of disrespect for tyranny, the cameras never would have made it up in the first place.

More likely he'd be the one to call the authorities on you.

Re:America, land of the "free".

[Totenglocke]

Yes, you have the right to be spied on and have your every movement and action monitored. You have the right to have your children arrested for climbing a tree (if you don't recall, it was on slashdot a year or two ago, where three 12 year olds were arrested for climbing a tree and inadvertently damaging the bark in the process). You have the right to be forced to be financially responsible for other people. The list goes on.

I'm completely with you on the whole "The US is crap with a psychotic government" issue. The problem is, the rest of the world is worse. If there were a better country to move to, I'd gladly let the TSA fondle my balls before I say "Fuck off America, I'm free!" as I board the plane.

Re:America, land of the "free".

[russotto]

Because when I climb 5 meter tall poles with wire-cutters in my teeth people tend to freak out.

Wear a tool belt (keep the wire cutters there), work clothes, and a hard hat... nobody will look twice.

Re:I've done this on several occasions.

[Strange Ranger]

"Every single time I interact with an officer where I'm suspected of committing a crime, I record the audio"
 
Something about that sentence...

Re:I live in NH, this happens a lot.

[hsmith]

Egg-on the police now includes doing legal things, like standing around openly carrying a firearm? Sorry, exercising your rights and impacting no one is not a reason to be stopped or questioned by police.

Re:America, land of the "free".

[cavebison]

If there were a better country to move to

God forbid there's a "better county" out there than the US. Oh no, not possible. There can't possibly be over 30 countries with greater life expectancy than the US. Oh no. Nor can the US possibly be 12th in the quality of life index, or not top of the human development index or.. fuck it, pick your index, the only one the US is on top of is the Blind Arrogance Index. But hey you're free to do that too.