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

Posted by Soulskill on 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.'"

19 of 384 comments (clear)

  1. Checks and balances by Nethemas+the+Great · · Score: 4, Insightful

    It's a good thing the US was founded with the notion of check and balances so as to prevent abuse of power...

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    Two of my imaginary friends reproduced once ... with negative results.
    1. Re:Checks and balances by Anonymous Coward · · 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.

    2. Re:Checks and balances by Idbar · · Score: 3, Insightful

      You mean personal checks (or cashier checks from big banks) and well balanced accounts?

    3. Re:Checks and balances by naz404 · · Score: 4, Insightful

      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.

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      http://www.object404.com
    4. Re:Checks and balances by betterunixthanunix · · Score: 5, Insightful

      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.

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      Palm trees and 8
    5. Re:Checks and balances by TheLink · · Score: 5, Insightful

      The biggest reason there are so many laws on the books are because most laws do not have a stated lifespan/expiry, and there is no "de-legislative" body dedicated to removing/repealing laws they think should not be there :),

      The legislature has the power to repeal laws, but they are usually too busy making laws...

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    6. Re:Checks and balances by Gerzel · · Score: 3, 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.

    7. Re:Checks and balances by demonlapin · · Score: 3, Insightful

      IIRC the key distinction is audio recording. This is why security cameras do not have audio.

    8. Re:Checks and balances by betterunixthanunix · · 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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      Palm trees and 8
    9. Re:Checks and balances by xmundt · · Score: 3, 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...

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      YAB - http://blog.beemandave.com/
    10. Re:Checks and balances by betterunixthanunix · · Score: 3, 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

      http://www.wired.com/threatlevel/2009/05/manga-porn/

      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

      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/

      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/

      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?

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      Palm trees and 8
  2. Re:If they have nothing to hide? by Lunix+Nutcase · · Score: 3, Insightful

    Especially when I doubt any of these same police officers ask consent of the drivers they record with their dashboard cams.

  3. Re:Police have no expectation of privacy by future+assassin · · Score: 3, 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?

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    by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
  4. Re:Police have no expectation of privacy by Lunix+Nutcase · · Score: 3, Insightful

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

  5. Re:recording the police should be a right by nahdude812 · · Score: 3, 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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    Slay a dragon... over lunch!
  6. Re:Police have no expectation of privacy by Anonymous Coward · · Score: 3, Insightful

    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.

  7. Re:Police have no expectation of privacy by TheCouchPotatoFamine · · Score: 4, Insightful

    no it doesnt! you are a fool. If the guy is down or restrained he is down or restrained. If the freakin' video shows the guy was restrained or incapacitated and they KEPT GOING, then no "context" is needed. This is obvious, and the cops want to justify their use of force... they are trained and paid to know how to deal with this. Not act like a scared granma with a shotgun.

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    CS majors know the time/space tradeoff, but they never get taught the 3rd, crucial, tradeoff of the set: comprehension!
  8. Re:Police have no expectation of privacy by Mister+Whirly · · Score: 3, Insightful

    Spoken like someone who has never been harassed, abused, or falsely accused by the police. My guess is that you would change your tune in a heartbeat if you were on the other side of it, even once. If the officers were truly using "reasonable force" responding to the suspect, they should welcome all video evidence of the encounter. If they have done nothing wrong, it will enforce that fact.

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    "But this one goes to 11!"
  9. Re:Police have no expectation of privacy by honkycat · · Score: 3, 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?