re Boston police fight cellphone recordings

[Dave Farber <dave () farber net>]

Begin forwarded message:

> From: Timothy Lyons <lyons () geekcq com>
> Date: January 13, 2010 5:20:53 PM EST
> To: dave () farber net
> Subject: Re: [IP] Boston police fight cellphone recordings

> There was more coverage of this issue in the register as well. Seems  
> like the problem's not isolated to Boston.
>
> --Tim
> Original URL: http://www.theregister.co.uk/2010/01/12/police_cellphone_videos/
>
> Police cuff citizens for videotaping arrests
>
> Film a cop, go to jail
>
> By Dan Goodin in San Francisco
>
> Posted in Crime, 12th January 2010 18:27 GMT
>
> Free whitepaper – PowerEdge M-Series blades I/O guide
>
> Since the police beating of motorist Rodney King in 1991, men in  
> blue have looked warily at the civilian videotaping of arrests and  
> other police activities. Some cops are so opposed to the practice,  
> they've begun arresting the amateur videographers and charging them  
> criminally.
>
> According to this article (http://www.boston.com/news/local/massachusetts/articles/2010/01/12/police_fight_cellphone_recordings/ 
> ) published by the New England Center for Investigative Reporting,  
> police in Boston and Pennsylvania have regularly arrested otherwise  
> law-abiding citizens who videotape cops as they go about performing  
> arrests on public streets. The charge: illegal electronic  
> surveillance.
>
>
> "The police apparently do not want witnesses to what they do in  
> public," Sarah Wunsch, a staff attorney with the American Civil  
> Liberties Union of Massachusetts, was quoted as saying.
>
> Like 11 other states, Massachusetts is a two-party consent state,  
> meaning that all parties to a conversation must agree to be recorded  
> on telephones or other audio devices. Police in Boston and elsewhere  
> have used the law to arrest videographers who use cameras with audio  
> recording capabilities.
>
> With the ubiquity of video cameras, just about every facet of public  
> life - from fights on public transit (http://www.youtube.com/watch?v=nx6FRSemW38 
> ) to executions of megalomaniac world leaders (http://www.veoh.com/browse/videos/category/news/watch/v193311w8ZTcCNh 
> ) - is regularly captured on tape. But if certain police get their  
> way, the sole exception to that rule will be reserved for actions  
> they carry out that they'd prefer remain secret.
>
> The irony isn't lost on Jon Surmacz, who was arrested in December  
> 2008 for videotaping police as they broke up a party he was attending.
>
> "Had I recorded an officer saving someone’s life," he said. "I almos 
> t 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.'" ®
>
>
>
> On Wed, Jan 13, 2010 at 17:10, Dave Farber <dave () farber net> wrote:
>
>
>
>
> Begin forwarded message:
>
> > From: Richard Forno <rforno () infowarrior org>
> > Date: January 13, 2010 4:33:36 PM EST
> > To: Undisclosed-recipients: <>;
> > Cc: Dave Farber <dave () farber net>
> > Subject: Boston police fight cellphone recordings
>
> > Police fight cellphone recordings
> >
> > Witnesses taking audio of officers arrested, charged with illegal  
> > surveillance
> > By Daniel Rowinski, New England Center For Investigative Reporting   
> > |  January 12, 2010
> >
> > http://www.boston.com/news/local/massachusetts/articles/2010/01/12/police_fight_cellphone_recordings
> >
> > 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 record 
> > ing.
> >
> > 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 the 
> > n, 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 t 
> > he kind of street-level oversight that cellphone and video technol 
> > ogy make possible.
> >
> > “The police apparently do not want witnesses to what they do in pu 
> > blic,’’ said Sarah Wunsch, a staff attorney with the American  
> > Civil Liberties Union of Massachusetts, who helped to get the crim 
> > inal 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 individua 
> > l is inappropriately interfering with an arrest that could cause h 
> > arm to an officer or another individual, an officer’s primary resp 
> > onsibility 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 a 
> > ll parties to a conversation must agree to be recorded on a teleph 
> > one or other audio device; otherwise, the recording of conversatio 
> > n is illegal. The law, intended to protect the privacy rights of i 
> > ndividuals, appears to have been triggered by a series of high-pro 
> > file 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 gett 
> > ing his charges dismissed. The law, she said, does not prohibit pu 
> > blic recording of anyone. “You could go to the Boston Common and s 
> > nap 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 Soc 
> > iety.
> >
> > Ardia said the proliferation of cellphone and other technology has  
> > equipped people to record actions in public. “As a society, we sho 
> > uld be asking ourselves whether we want to make that into a crimin 
> > al 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’ righ 
> > t to videotape in public. Police in Spring City and East Vincent T 
> > ownship agreed to adopt a written policy confirming the legality o 
> > f videotaping police while on duty. The policy was hammered out as 
> >  part of a settlement between authorities and ACLU attorneys repre 
> > senting 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 Pi 
> > erre. “At this time, this office has not issued any advisory or op 
> > inion on this issue.’’
> >
> > Massachusetts has seen several cases in which civilians were  
> > charged criminally with violating the state’s electronic surveilla 
> > nce law for recording police, including a case that was reviewed b 
> > y the Supreme Judicial Court.
> >
> > 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 unequivocal 
> > ly banned, and, unless and until the Legislature changes the statu 
> > te, what was done here cannot be done lawfully,’’ the SJC ruled  
> > in a 4-to-2 decision.
> >
> > 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 offi 
> > cial conduct at issue is that of the police,’’ Marshall wrote.  
> > “Their role cannot be performed if citizens must fear criminal rep 
> > risals when they seek to hold government officials responsible by  
> > recording, secretly recording on occasion, an interaction between  
> > a citizen and a police officer.’’
> >
> > 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 ph 
> > one 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.’ 
> >  ’’
> >
> > The New England Center for Investigative Reporting at Boston  
> > University is an investigative reporting collaborative. This story  
> > was done under the guidance of BU professors Dick Lehr and Mitchell  
> > Zuckoff.
> Archives        



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