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[liberationtech] Police Fight Cellphone Recordings (fwd)
davies at csli.stanford.edu
Thu Jan 14 11:38:49 PST 2010
Police Fight Cellphone Recordings
Police Fight Cellphone Recordings
Syndicated from Common Dreams
Promoted by blackandred on Tue, 2010/01/12 - 7:37pm.
by Daniel Rowinski
Simon Glik, a lawyer, was walking down Tremont Street in Boston when
he saw three police officers struggling to extract a plastic bag from
a teenager's mouth. Thinking their force seemed excessive for a drug
arrest, Glik pulled out his cellphone and began recording.
Within minutes, Glik said, he was in handcuffs.
"One of the officers asked me whether my phone had audio recording
capabilities," Glik, 33, said recently of the incident, which took
place in October 2007. Glik acknowledged that it did, and then, he
said, "my phone was seized, and I was arrested."
The charge? Illegal electronic surveillance.
Jon Surmacz, 34, experienced a similar situation. Thinking that Boston
police officers were unnecessarily rough while breaking up a holiday
party in Brighton he was attending in December 2008, he took out his
cellphone and began recording.
Police confronted Surmacz, a webmaster at Boston University. He was
arrested and, like Glik, charged with illegal surveillance.
There are no hard statistics for video recording arrests. But the
experiences of Surmacz and Glik highlight what civil libertarians call
a troubling misuse of the state's wiretapping law to stifle the kind
of street-level oversight that cellphone and video technology make
"The police apparently do not want witnesses to what they do in
public," said Sarah Wunsch, a staff attorney with the American Civil
Liberties Union of Massachusetts, who helped to get the criminal
charges against Surmacz dismissed.
Boston police spokeswoman Elaine Driscoll rejected the notion that
police are abusing the law to block citizen oversight, saying the
department trains officers about the wiretap law. "If an individual is
inappropriately interfering with an arrest that could cause harm to an
officer or another individual, an officer's primary responsibility is
to ensure the safety of the situation," she said.
In 1968, Massachusetts became a "two-party" consent state, one of 12
currently in the country. Two-party consent means that all parties to
a conversation must agree to be recorded on a telephone or other audio
device; otherwise, the recording of conversation is illegal. The law,
intended to protect the privacy rights of individuals, appears to have
been triggered by a series of high-profile cases involving private
detectives who were recording people without their consent.
In arresting people such as Glik and Surmacz, police are saying that
they have not consented to being recorded, that their privacy rights
have therefore been violated, and that the citizen action was criminal.
"The statute has been misconstrued by Boston police," said June
Jensen, the lawyer who represented Glik and succeeded in getting his
charges dismissed. The law, she said, does not prohibit public
recording of anyone. "You could go to the Boston Common and snap
pictures and record if you want; you can do that."
Ever since the police beating of Rodney King in Los Angeles in 1991
was videotaped, and with the advent of media-sharing websites like
Facebook and YouTube, the practice of openly recording police activity
has become commonplace. But in Massachusetts and other states, the
arrests of street videographers, whether they use cellphones or other
video technology, offers a dramatic illustration of the collision
between new technology and policing practices.
"Police are not used to ceding power, and these tools are forcing them
to cede power," said David Ardia, director of the Citizen Media Law
Project at Harvard's Berkman Center for Internet and Society.
Ardia said the proliferation of cellphone and other technology has
equipped people to record actions in public. "As a society, we should
be asking ourselves whether we want to make that into a criminal
activity," he said.
In Pennsylvania, another two-party state, individuals using cellphones
to record police activities have also ended up in police custody.
But one Pennsylvania jurisdiction has reaffirmed individuals' right to
videotape in public. Police in Spring City and East Vincent Township
agreed to adopt a written policy confirming the legality of
videotaping police while on duty. The policy was hammered out as part
of a settlement between authorities and ACLU attorneys representing a
Spring City man who had been arrested several times last year for
following police and taping them.
In Massachusetts, Wunsch said Attorney General Martha Coakley and
police chiefs should be informing officers not to abuse the law by
charging civilians with illegally recording them in public.
The cases are the courts' concern, said Coakley spokesman Harry
Pierre. "At this time, this office has not issued any advisory or
opinion on this issue."
Massachusetts has seen several cases in which civilians were charged
criminally with violating the state's electronic surveillance law for
recording police, including a case that was reviewed by the Supreme
Michael Hyde, a 31-year-old musician, began secretly recording police
after he was stopped in Abington in late 1998 and the encounter turned
testy. He then used the recording as the basis for a harassment
complaint. The police, in turn, charged Hyde with illegal wiretapping.
Focusing on the secret nature of the recording, the SJC upheld the
conviction in 2001.
"Secret tape recording by private individuals has been unequivocally
banned, and, unless and until the Legislature changes the statute,
what was done here cannot be done lawfully," the SJC ruled in a 4-to-2
In a sharply worded dissent, Chief Justice Margaret Marshall
criticized the majority view of a law that, in effect, punished
citizen watchdogs and allowed police officers to conceal possible
misconduct behind a "cloak of privacy."
"Citizens have a particularly important role to play when the official
conduct at issue is that of the police," Marshall wrote. "Their role
cannot be performed if citizens must fear criminal reprisals when they
seek to hold government officials responsible by recording, secretly
recording on occasion, an interaction between a citizen and a police
Since that ruling, the outcome of Massachusetts criminal cases
involving the recording of police by citizens has turned mainly on
this question of secret vs. public recording.
Jeffrey Manzelli, 46, a Cambridge sound engineer, was convicted of
illegal wiretapping and disorderly conduct for recording MBTA police
at an antiwar rally on Boston Common in 2002. Though he said he had
openly recorded the officer, his conviction was upheld in 2007 on the
grounds that he had made the recording using a microphone hidden in
the sleeve of his jacket.
Peter Lowney, 39, a political activist from Newton, was convicted of
illegal wiretapping in 2007 after Boston University police accused him
of hiding a camera in his coat during a protest on Commonwealth Avenue.
Charges of illegal wiretapping against documentary filmmaker and
citizen journalist Emily Peyton were not prosecuted, however, because
she had openly videotaped police arresting an antiwar protester in
December 2007 at a Greenfield grocery store plaza, first from the
parking lot and then from her car. Likewise with Simon Glik and Jon
Surmacz; their cases were eventually dismissed, a key factor being the
open way they had used their cellphones.
Surmacz said he never thought that using his cellphone to record
police in public might be a crime. "One of the reasons I got my phone
out . . . was from going to YouTube where there are dozens of videos
of things like this," said Surmacz, a webmaster at BU who is also a
part-time producer at Boston.com.
It took five months for Surmacz, with the ACLU, to get the charges of
illegal wiretapping and disorderly conduct dismissed. Surmacz said he
would do it again.
"Because I didn't do anything wrong," he said. "Had I recorded an
officer saving someone's life, I almost guarantee you that they
wouldn't have come up to me and say, Hey, you just recorded me saving
that person's life. You're under arrest.'"
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