Re Boston police fight cellphone recordings

[Dave Farber <dave () farber net>]

Begin forwarded message:

> From: Labmanager <labmanager () gmail com>
> Date: January 14, 2010 3:39:33 PM EST
> To: dave () farber net
> Subject: Re: [IP] . Re Boston police fight cellphone recordings

> Dr. Farber,
>
> The people replying to this story are over thinking the issue.  This  
> really has nothing to do with "Two Party Consent" or consent of any  
> type.  This has everything to do with police officers using highly  
> questionable tactics to confiscate and delete potentially damaging  
> video.  Video which would likely result in civil or even criminal  
> charges being brought against the officers involved.
>
> Until someone passes a law making it a crime for a police officer to  
> confiscate video made by citizens on the streets this practice will  
> continue.  Of course that would empower the pubic, which is not a  
> trend America has been following for the last decade.
>
> Personally, I'd like to see the officers in such cases charged with  
> tampering with or destroying evidence .
>
> Jerry
>
>
>
> On Thu, Jan 14, 2010 at 1:13 PM, Dave Farber <dave () farber net> wrote:
>
>
>
>
> Begin forwarded message:
>
> > From: Sarah Wunsch <swunsch () aclum org>
> > Date: January 14, 2010 1:00:22 PM EST
> > To: dave () farber net
> > Subject: [IP] Boston police fight cellphone recordings
>
> > Dave, two points:  First, the phrase “two party consent” in  
> > relation to the Massachusetts wiretap statute is misleading.  The  
> > statute prohibits “secret” interceptions of audio or wire  
> > communications.  Thus, if a person is openly recording the police  
> > in public, that is not secret recording in violation of the statut 
> > e.  The police have persisted in arresting people for that, despit 
> > e court decisions rejecting these arrests.  The police tell the pe 
> > rson, I didn’t consent, and think that gives them the right to arr 
> > est.  They’re wrong.
> >
> >
> >
> > Second, Harvey Silverglate mentions legislative fixes.  The  
> > existing statute does not need to be fixed to deal with the problem  
> > of arrests of people who are openly in public recording audio. The  
> > law plainly bans only secret recording and the courts have agreed  
> > with that and have thrown out charges against people who openly  
> > recorded. The case he refers to, Commonwealth v. Hyde, upheld the  
> > conviction under the wiretap law of a man who secretly voice  
> > recorded the police after they stopped his car.  Although the ACLU  
> > of Massachusetts filed an amicus brief in support of the man on the  
> > appeal, the highest court of our state held that the statute  
> > prohibiting secret audio recording did extend to protecting the  
> > police even when they are carrying out their duties in public.  Two  
> > justices joined in a very vigorous dissent, saying that the statute  
> > plainly was intended to protect the privacy interests of our  
> > residents, not the police carrying out their duties in public.  Our  
> > statute does not, however, expressly use the language that many  
> > state wiretapping statutes contain, about protecting conversations  
> > that take place in a context where the people have an expectation  
> > of privacy.  We are discussing ways to fix that legislatively; it  
> > isn’t actually simple.   Thanks for the discussion.
> >
> >
> >
> > Sarah Wunsch, Staff Attorney
> >
> > ACLU Foundation of Massachusetts
> >
> > 211 Congress Street, Third Floor
> >
> > Boston, MA 02110
> >
> > 617-482-3170, ext. 323
> >
> > (fax) 617-451-0009
> >
> > swunsch () aclum org
> Archives        



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