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Police Fight Cellphone Recordings
Witnesses taking audio of officers arrested, charged with illegal surveillance
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.
Boston Police Fight Cellphone Recordings; Witnesses taking audio of officers arrested, charged with illegal surveillance (AP Photo/Paul Sakuma) 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 possible.
"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 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 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 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 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 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 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.' ''
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.
61 Comments so far
Show AllDoes this mean I can sue the government for illegal surveillance? I mean the general public is being put under a microscope these days. What sort of rights do we have where this subject is concerned?
That's a key issue, and the answer is 'very few'.
The law, in general, is that there can be *no* expectation of privacy for what someone does in a public place. But the legal definition of 'public place' has increasingly been redefined to include what most of us would think of as private space.
The idea that surveillance must be obvious shouldn't be part of the law where government officials are the ones being surveilled. They have too much power over mere citizens! Any cop who arrests someone on such a pure-intimidation charge should lose his job and pension forthwith.
>>*no* expectation of privacy for what someone does in a public place.<<
Yet the example which started this piece took place in a public street.
Guess it depends on whom doing the surveillance right?
Gary
Yes, exactly. Whether it's officially a crime depends on who's committing it.
"Any cop who arrests someone on such a pure-intimidation charge should lose his job and pension forthwith."
Citizens have to convince city and state legislators of the need for such a policy. Plato discussed the problem and raised the question of who will police the police.
The actions of the officers in arresting the the cellphone/camera users could also be described as witness tampering, attempting to intimidate the witnesses to the event. Unfortunately since the DA has to work with the police, and probably fears them, charges are unlikely.
E
police arrests are public events. what police say during those arrests are operative legal facts. police have cam corders and dicta belts and use them when confronting and questioning suspects, even those they stop for merely running a red light. i believe that there is a first amendment right under our federal constituion to record public events. i hope there is a judicial challenge to these laws soon, all the way to the u.s. supreme court, if necessary. i can see that laws must protect private conversation, but even at that, a party to a private conversation could repeat it from memory, if called to in court. if the conversation had legal significance, then why not allow any party to a conversation to record it? a recording is the best evidence of what someone has said.
Problem? The pigs want the evidence of their malfeasance and brutality to remain in the darkness where ALL evil resides.
Exactly. As long as something is deemed "illegal", it is inadmissable as evidence in our corporate goon squad game called the court of law. They can call anything the exact reverse of what it is. "Legal" is a term that has no relation to justice.
I'm surprised that more people aren't arrested for third degree interference with a police officer just for looking at a cop.
I'm with you, except I do not believe they will allow it to go to the Supreme Court, because they do not want a hard ruling on the issue. Many businesses have surveillance devices (both video and audio) in the name of security.
The police will continue to cite civilians for interfering with a police officer in the line of his duty (makes them nervous because they have to 'watch' for assailants).
BTW, illegally obtained evidence (audio recordings), though not admissable in court, MIGHT be used to prove perjury, especially that of an 'officer of the court'. TRANSCRIPTS are admissable. That is why Bill OReilly settled on the sexual harassment charge, because he had made a sworn affidavit as to his innocence, and then was presented with a transcript of a telephone conversation, without admission as to it having been recorded....(at least rumor has it)...
When you're a public officer in your public job, you have no right to privacy, especially on public property.
The officers don't have a right not to be recorded, except when they're off duty doing personal business.
It's as simple as that.
I'd say they should have no expectation of privacy at any time they have the power to carry a weapon and arrest people. It shouldn't matter whether they're nominally off-duty.
Doesn't the fact the police are servants of the public enter into the debate at all - this is not the same as violating the rights of a private citizen. If the police are allegedly acting in the course of their duty, as an employee of the people, are they not then accountable to the people? The idea they could act autonomously violates the fundamental tenet of the code giving them authorization to exist in the first place. The video cameras they have in their police cars, etc. exist not just to record criminal activity, they exist to monitor police activity as well.
I had a police officer once try to prevent me from taking photos. He didn't/couldn't, and he was later chastised by the judge. But I didn't try to hide the fact I was trying to take the photos.
An unfortunate affect of TV crime and cop shows and the War on Drugs and War on Terror and the lack of proper Civics education has led too many Americans to believe police have more powers than they do and to not understand their own rights, or the idea behind the balance of powers and the reason Lady Justice is blindfolded.
Cops are too often subpar human beings on ego power trips, and this makes them a dangerous lot when given too much unchecked power over others- that's why it is all the more important citizen watch groups exist and ordinary citizens be allowed to record and report what they witness. And the police need to know that is going to happen when they step over the line, that they will be called out on it. That is the only real protection we have from a police state.
cosmobilly 11:44 am "...the police are servants..." Hi guy, did you read that somewhere? Point: Anybody with a badge & gun who can execute you on the street or take you into a basement and shove a broomstick up your butt with impunity, is NOT YOUR servant, not even a little bit. And yes, they do.
The underlying problem is that the Police continue to act in such a manner because there are no REAL consequences.
They can be chastised by the judge or the "City" (Taxpayer) pays a fine but the Officer in Question rarely suffers.
Fines for the violation of the rights of a Citizen should be substantial and should not be footed by the taxpayer.
here in nyc they run commercials asking you to take pictures of a crime if you see one happening. makes one wonder what would happen if the cop was committing the crime. that would be
interesting!
Police should be happy they're not being waterboarded and embrace being taped. If they're innocent, they have nothing to worry about. Right?
are you on acid?
Cops have the best.
And why not? They know where to find it.
There's no point in saying they have "no right" when arrests are being made and, in some states, upheld. Clearly, legal rights are not what people think they are - and THAT is certainly an issue, the need to educate.
There also may be a need to change the laws.
I think it's worth considering this from another angle: if the cops come and arrest me, I assume they will ensure that the arrest doesn't show up on the evening news, right? Right?
If you wish to fight back against police brutality, log onto copwatch.org and check out your legal rights to observe and report police actions.
Sunlight is the best disinfectant
wash. post circa feb 2008... major revisions to the 30-year-old Foreign Intelligence Surveillance Act,... approving immunity from lawsuits for telecommunications companies that cooperated with intelligence agencies in domestic spying...
so... congress codifies (retroactive) immunity for corporations' illegal wiretapping (recording) of private citizens'... but joe citizen faces arrest for openly recording public events by public employees...
(yes i know the FISA bill rested on "national security" arguments... if they faced prosecution... they would not cooperate in the future... and the safety of the american people... blah... blah... blah... but that's a whole different series of arguments...)
i like what another commenter said... how many people did they arrest taking video, for example, during the rescue operations of the plane that went down in the hudson...
fair applications of standards seems to be the issue(s)... and... it's really not what one does anymore... it's if you get caught... and what your level is in the socio-economic strata... when you do...
i believe that the aclu is suing over this it is unconstitutional to pass
a retro bill of this nature.
Any retro active immunity law is strictly prohibitied in the Constitution.
Congress shall pass no ex post facto laws. Article I, section 9 of the U.S. Constitution
Telecom wiretap retroactive immunity is by definition an ex post facto law. Unconstituional, every word.
The issue here is that wiretapping is audio NOT video. The reason the cop asked if it was recording audio is that video is not restricted by the wiretap law. Just say it's video only if asked. You'll be lying of course but he won't know that.
The wiretap law is being misapplied. First the recording occurred in a public place and there were no "wires" that were being "tapped".
Lying to a police officer is definitely criminal ask Martha Stewart.
If memory serves, the federal wiretap law was updated sometime in the 80s to include wireless communications and surveillance. Each state has its own laws on wiretapping and privacy. However, I find it absurd that even in a state where the courts have ruled that both parties must consent to the recording, citizens are still prohibited from doing so in public. How absurd is it, that police officers have an inherent expectation to privacy, while in public?
It seems to me the MA judicial system is broken and corrupt, the same can be said about the federal government and many other states around the nation.
Of course, MA legislatures have no sense of irony, what with the state being the birthplace of the American revolution against the tyranny of those so-called English Monarchs. Who's tyrannical now?
The cops are applying the most 'cookbook' interpretation they can, the audio/video dichotomy is just more of the same. If anyone is prosecuted and convicted for illegally recording public or improper police activity, restart the revolution.
The role of the government is to act in ways that are contrary to the good of its citizens.
Can you say NAZI Germany in the USA!
Something similar to me happened last year on my way to a Pro-GAZA Rally.
I was circled and detained by six Sherif deputies for taking three cell phone pics of a department of Homeland Security vehicle.
They went into my phone and deleted my pictures, unbeknownst to me, while I was facing the opposite direction being illegally searched and frisked.
And as soon as they deleted the pics, they immediately let me go. Hm?!
What I learned from this experience is that as soon as you photograph or record your mark, immediately email it to yourself or someone else. That way they cannot delete your material.
Also this is what happens to a "free citizen" in a "free country" where the President (then BUSH, Now Obama - sound familiar) supports such anti-Constitutional bills, like the Patriot Act I & II and illegal spying bills like FISA.
It's okay for the Big Government Big Brother to spy on and watch and record us, but wow they do NOT like it when you give them a taste of their own medicine!
not to mention cages disguised as free speech zones! think obomba is any different?
that Bush sure is a Facsist! We know Obama will put a stop to this!
All ve vant ish de informashun.
Show us your papers, please!
Do you like mice? Ve haff a clever device that encircles de head with hungry mice inside,
Ve hope zey like you, Herr Owl.
In ze future, remember zis: Herr Blackenfhurer Obama ish ze employee of Herr Fuhrer Bush. You vill show respect or face de effects.
Alf vederzein, dumkoff.
"What I learned from this experience is that as soon as you photograph or record your mark, immediately email it to yourself or someone else."
Although I don't own such a device it seems to me that, with the ubiquitous WiFi, there should be an app that carries out a streaming upload of what you record to your home machine or wherever.
for the most part, cops are good people. If you are so anti-cop, don't ever call one. And if you are a good progressive, don't own any guns either. And also make sure you live in a very diverse (read inner city) area.
I won't, I don't, and I do.
1) I don't call the cops. Ever. I've seen more activists get the crap kicked out of them by police than I care to remember. And believe me, the police LOVE taking video of activists. You know, just for their records. They are one of the primary terrorist groups in the country, and when the sh*t hits the fan, you can bet that they will be the new local warlords. They have the training, the organization, the communications, and the lack of any inhibitions on killing people. In short, perfect warlord material.
2) I'm not a good progressive, I own a gun. Several of them. And I know how to use them quite well. I need them for my self-defense. See #1.
As for the video thing, no surprise at all. When you're used to smashing in someone's head or tasering them for the hell of it, you certainly don't want your face splattered all over facebook and youtube. So I understand where the police are coming from. This is why garden variety criminals wear masks. The difference is that police know there is no accountability for them, and that their superiors will always defend them unless video is available objectively deomonstrating that the police lied. Even then, it probably won't make a difference. See, for example the case of Ian Van Ornum, tasered by police while surrounded, without any weapon whatsoever, laying on the ground and for part of the tasering, handcuffed: http://blogs.eugeneweekly.com/taxonomy/term/1478. The officer doing the tasering was later awarded "Officer of the Year." Like I said, it is clear who the terrorists are, and they are not Al Queda.
I agree, FOR THE MOST PART, cops are good people. BUT, like may organizations that try to "police" themselves, they cover up and protect the bad cops amoungst them. Once the cops start to arrest their own, the ones breaking the laws they've sworn to uphold, then people will again have respect for the organization. Probably the bad cops represent less than five percent (guess), but by their silence, the 95 percent become guilty by association....
It's understandable that the police would misuse a law to cover up their own criminal acts. The sad part of this is that the courts would support them, and the legislatures would not act to end this type of abuse.
How sweet! You assume that they're not all one and the same. Representing the same interests. Protecting the each other and the interests of their masters.
Oh, I see! They want to be SECRET POLICE. Fascism is like that.
Nothing to see here, move along, go about your business.....
I had a similar experience in Michigan when I was told by a policeman to stop taking pictures of a serious three-car accident near my house. The policeman was unable to tell me what law I was violating and he backed down when I suggested he arrest me if he thought I was violating a law or ordinance. There was another case in Detroit when a woman freelance reporter/photographer defied orders to stop taking pictures of an accident resulting from a high speed police chase. As I recall, when she refused to stop she was arrested and hauled off to jail. I'm not sure how her court case turned out. It seems to me the ubiquitous cell phone videos are a blessing because they discourage police misconduct.
What about all those cameras hidden behind domes dotting the city landscape? Are they not illegal surveillance invading privacy?
Silly me, of course not, they don't have sound recording.
Some do.
Head for the bunker!
Gary
When they do it, it's called 'surveillance', when we do it, it should be called 'sousveillance'- seeing from underneath, or spying on the spies. There's a whole theoretical framework dedicated to this pursuit. (and the gear to match, I think).
If they are recording a public place, then it seems only fair that "we the people" should have the same power of government or security companies to record in that space.
Just a little touch of fascism. we all know that some police are always looking for an excuse to demonstrate their power over we mere citizens. They love their tazers, cameras, pepper sprays, tear gas and "non-lethal devices". Since 911 they have been militarized and issued weapons of war. When the time comes they are going to club us, abuse us and jail us in cages which have already been constructed for this purpose. It's no fun being a policeman and I'm certain that some are not happy about the way things are going. Happiness in no necessary in a fascist state and corporate controlled democracy is fascism. Now I really know what it means to be a citizen of a central american nation. Bless you United Fruit Company.
"It's no fun being a policeman and I'm certain that some are not happy about the way things are going."
Unless you were being sarcastic, the opposite seems to be true. In my first law class in college I learned that if cops weren't cops, they'd be crooks. Well, guess what? They're not cops by accident and they DO thoroughly love what they do. It takes a very sick mind to do it just like the soldiers