July 13, 2001

5:17 PM

Hands where I can see them, and turn off that tape recorder!Today the Massachusetts Supreme Court upheld the conviction of a man for violating the commonwealth's electronic surveillance law when he secretly recorded police who pulled him over in a traffic stop. While it's generally bad to tape people without telling them, should there be an exception w/r/t to recording public officials acting in their official capacities? Or is wrong just wrong?
posted by dchase (22 comments total)

The law is the law. However, it may highlight that this particular law may need some slight overhaul.

Chief Justice Margaret Marshall and Justice Robert Cordy used the famous videotape of the Rodney King police beating in Los Angeles as an example of a recording that would have been prohibited under Massachusetts law.

So is Massachusetts, they would have been found not guilty anyways, because the evidence wouldn't have been admissable. Is this a good idea?

Personally, I think that a public employee is just that, and while on the job, not entitled to a lot of privacy protections. In their off time, no, they are private citizens, and should be treated as such. But when they punch the clock, monitoring of any kind should be ok.
posted by benjh at 5:30 PM on July 13, 2001

You should probably include a "when acting in an official capacity" in there just to draw a distinction between making an arrest and making a delivery while on the job....
posted by fooljay at 6:05 PM on July 13, 2001

What's the deal with 20/20 et al's use of the hidden briefcase cam when they uncover fraudulent businesses and the like? How can that be protected (if in fact it is), while an individual, engaging in an impromptu microcassette recording of a traffic stop not? I see that this is Mass and other states may have different laws, but surely in all those years of growing up watching TV, one of those hidden cam investigations had to have been in Massachusetts. . .

Set me straight if I'm wrong here.
posted by crasspastor at 7:06 PM on July 13, 2001

What rights of the average citizen are violated by in-car video cameras? There is no attempt to obtain the citizen's permission to be recorded and I've seen those in court (on television) before... Seems to me we have a bit of goose and gander action here.
posted by Spanktacular at 7:11 PM on July 13, 2001

"What's the deal with 20/20 et al's use of the hidden briefcase cam when they uncover fraudulent businesses and the like?"

As I recall from my days as an investigative journalist, some states are so-called two-party consent states, some states are one-party consent states. In Oregon, where I live and work, you need consent from the party being taped, making it a two-party consent state. None of those nifty hidden-camera stings are done here, unless consent is obtained after the fact. My friend, who worked in Minnesota, used to have all kinds of fun hiding in crack houses, surreptitiously taping mayhem of many varieties. The bottom line is that the laws vary from state to state, and change all the time.
posted by apollo at 7:17 PM on July 13, 2001

I fail to understand how this law makes any practical sense. If I take my videocamera to the football game and do a panning shot across the stadium, have I just violated this law 30,000 times?
posted by ljromanoff at 8:00 PM on July 13, 2001

To followup, I understand that the law specifies 'hidden' taping, but if there's no possibility of those I'm taping to know I'm taping them (I am half a stadium away in my example) does that not constitute 'hidden'? What if I have a web cam pointed out the window of my house as people walk up the sidewalk?
posted by ljromanoff at 8:02 PM on July 13, 2001

Hypothetical: Suppose, upon being pulled over, the driver had stated to the officers: "I am recording this conversation. Please tell me if you would like to stop the recording."

One of my greatest fears has always been that I would be unfairly arrested/jailed/harassed by those in power, a la Kafka. A recording device seems to me to be one of the few available checks that private citizens have against abuse of power.

Let's work to change the law/s!
posted by davidmsc at 8:14 PM on July 13, 2001

What's bogus about this ruling is that no one has a protected expectation of privacy when in a public place. This was a traffic stop. How is a tape recorder any worse than dashboard video cameras in police cruisers or video cameras on street corners or in stores? BOGUS!
posted by fleener at 9:18 PM on July 13, 2001

I think the big difference is that you KNOW the cop has a camera in their car. Since your car is your property, you can tape audio or video all you want in it, but you have to inform the officer or passenger, or have a sticker on the window, or something. (I don’t know what Mass. considers notification, it may be as little as not hiding the recorder.) I don't believe an officer (or anyone) can tell you that you have to turn off a recording device in your car. They might drag you out the window and beat the hell out of you outside, where the tape wouldn’t record your grunts of pain, but other than that, I think this is just a notification issue. The law says that people have the right to know when their behavior is being recorded.

Is does bring up interesting legal issues that I think need to be addressed, because if you can only record discreetly with a warrant, then citizens loose an important tool for fighting back against corruption. It basically makes it so IA is the only line of defense, because if you cannot record evidence privately, it will always come down to the word of a citizen against that of an officer. You can guess who wins in most courts when that happens.
posted by Nothing at 10:21 PM on July 13, 2001

That law has to change.

Me: "I'm taping this conversation, would you like me to stop?"
(Five minutes later, in a dark ravine)
Cop: "I'm beating you with a lead pipe, would you like me to use a broken bottle instead?"
posted by D at 10:56 PM on July 13, 2001

The majority opinion (from here) is standard "slippery slope" slop:

Marshall's argument, [Justice John Greaney] wrote, would allow drug dealers to secretly record conversations with suspected undercover officers to protect themselves from police abuse. ''Every police encounter would be available for secret recording; even meter maids would not be spared,'' he wrote.

Later, he added, ''The door once opened would be hard to close...''

So because he is afraid it may somehow enable a few snitches and other weaselly types to make police behave properly, he refuses to allow law-abiding citizens to secretly record their dealings with police officers.
posted by pracowity at 3:18 AM on July 14, 2001

Police are no longer an agent of the people, but agents of power. I definitely believe that the police force needs to be privatized. Otherwise the sytem of checks and balances falls null when it comes to justice. We the taxpayers pay them. We need some say in their conduct.

In light of the King incident and other abuses of power, this is absurd. The idea of a police state is manifesting itself daily.

This is why I hate the police. I don't hate them as individuals. They are simply doing their jobs, and an important one at that, but P.D.'s need seriouis reform. If they do not work for the public who do they work for?
posted by ttrendel at 3:33 AM on July 14, 2001

Amen, ttrendel.
posted by dong_resin at 4:57 AM on July 14, 2001

If police are privatized, they won't work for the people, but for whoever can pay them the most.
posted by Doug at 10:24 AM on July 14, 2001

I fail to see how the police as public employees are not individuals entitled to the protection of the law. If the law in Massachusetts is designed to prevent the recording of conversations or events by one party without the permission of the other involved parties, then the all of the citizens of Massachusetts are entitled to the protection that law affords. Police officers by definition - at least if I go by the state I live in - must reside in and are citizens of the state of Massachusetts and I firmly believe their rights as individuals supercede any efforts, no matter how well intentioned, to restrain them because of your distrust of "da Man." You prejudge them unfairly if you assume they will behave badly or inappropriately without any cause for that belief other than "I hate the police."
posted by m.polo at 10:33 AM on July 14, 2001

Don't forget what happened when the police were privatized in Detroit. They went on strike and RoboCop had to take over.
posted by @homer at 10:39 AM on July 14, 2001

While police are citizens, aren't exceptions regularly made vis-a-vis the rights of citizens who also happen to be agents of the state, particularly w/r/t actions taken as agents of the state? If I were a member of my local school committee and I discussed a school issue with someone via e-mail, I would be legally obligated to provide copies of those messages to anyone requesting them. In Massachusetts such correspondence between two citizens is considered to be part of the public record and subject to open meeting laws. I would have no such obligation to provide people with copies of e-mail I send to my wife, a friend or business colleague (unless school committee issues were discussed).

So, is a police officer, in the act of pulling you over, acting as a private citizen, or as an agent of the state? If the latter, then are you recording the speech of a citizen, or of a government official? If the selectman has no reasonable expectation of privacy when undertaking actions as a selectman, then should a police officer?
posted by dchase at 11:15 AM on July 14, 2001

m.polo: It's perfectly fair for an employer to monitor the activities of its employee. We all accept that as matter of course our Internet usage from work, for example, may be monitored, even if we're not explicitly told it will be. In the case of the police, we the public are the employer, and we have the perfect right to monitor the actions of the police on our behalf.
posted by kindall at 11:20 AM on July 14, 2001

Well said, kindall.
posted by rushmc at 1:45 PM on July 14, 2001

Damn, kindall. That's the best argument yet. The simplicity is beautiful.
posted by Spanktacular at 5:09 PM on July 14, 2001

You prejudge them unfairly if you assume they will behave badly or inappropriately without any cause for that belief other than "I hate the police."


Its not like their a bunch of accountants, they have rights you and I don't have. For starters they are the ones carrying a loaded gun and when used have the entire PD to provide them with a legal defense if challenged.

Self monitoring is a good idea but being monitored by citizens is even better. The phrase "if you're not breaking the law you have nothing to worry about" works both ways.
posted by skallas at 3:56 PM on July 15, 2001