Got That New iPod Nano? You Might Risk Arrest In Massachusetts

from the that's-not-good dept

Fri, Sep 11th 2009 9:38am — Mike Masnick

You may have heard that the new iPod Nano that was just released happens to include a voice recorder among other new features. But if you get one, you might want to be careful how you use it -- especially in certain states, such as Massachusetts. Slashdot points us to a story about a guy who was arrested in a dispute-gone-wrong with a car repair shop, but the really odd part is that beyond disorderly conduct and resisting arrest, the guy was charged with both "unlawful wiretapping and possessing a device for wiretapping." Wiretapping? In a dispute involving a mechanic? Apparently the guy had a simple Olympus digital voice recorder in his pocket, which was on during his argument with the repair shop. And Massachusetts is one of twelve states with a law that forbids taping conversations without the approval of everyone involved. Even if you accept such a law (and it doesn't make much sense to me), the inclusion of "possessing a device for wiretapping" seems really problematic. Digital voice recorders are quite common. Plus, many mobile phones and even cameras include similar things. And, of course, now with the new iPods including that, does it mean it's illegal to carry one in Massachusetts (or those eleven other states) without first announcing it and getting permission? Obviously no one's likely to get arrested just for carrying around an iPod Nano, but the fact that the law makes such a scenario possible demonstrates a pretty serious problem with the law.

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Filed Under: massachusetts, voice recorder, wiretapping

42 Comments

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Shawn (profile), 11 Sep 2009 @ 9:10am

A coupla things From the slashdot discussion and a glance through the Ma General Laws-

Calling it a wiretapping law is misleading because it is actually a law governing "Interception of wire and oral communications."
I do not think all parties have to APPROVE of the recording taking place, they must be AWARE of it. So if he had said 'I am recording this conversation' he would have been in the clear.

The Possession of a device for wiretapping charge is ridiculous. In reading the account of the incident it sounds like the guy was a behaving like a total asswipe, and my guess is he pissed the cop off and the cop decided to charge him with everything he could come up with.

and yeah it is a farked up law
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Free Capitalist (profile), 11 Sep 2009 @ 9:48am

Re:
Calling it a wiretapping law is misleading because it is actually a law governing "Interception of wire and oral communications."

Thanks for clearing that up. I was acutally beginning to wonder how the prosecutor could prove that the wire leading from the defendant was in fact securely anchored in the mechanic's skull.

Even still, it does sound like a mess of a law.
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Scote, 11 Sep 2009 @ 10:18am

SOP for criminal law.
It is very common for ordinary items to be charged as criminal based on context. A screw driver is a screwdriver until the cops decide to charge you with burglary, in which case they also charge you with possession of burglary tools. Or if they charge you with assault, in which case they charge you with illegal possession of a concealed dirk or dagger (and under CA case law even a pen or pencil can be charged as a "dirk or dagger.") It is ridiculous to charge the recorder as an illegal wiretapping device, but no more so that than charging other items as being illegal based on the alleged context.
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rf, 11 Sep 2009 @ 10:32am

Re: SOP for criminal law.
it's a common expression among those persecuted...er...prosecuted by the us federal govt that "they can indict a ham sandwich" in that with the advent of conspiracy laws, if they feds want you they can take you no matter what without evidence of any sort or even an actual crime having taken place
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Chronno S. Trigger (profile), 11 Sep 2009 @ 10:35am

Technology
"but the fact that the law makes such a scenario possible demonstrates a pretty serious problem with the law."

Especially since tech likes to turn itself on when it's in your pocket. How many times have you gotten a call from someone asking why you called them and didn't say anything?
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Anonymous Coward, 11 Sep 2009 @ 10:38am

Re: Technology
"How many times have you gotten a call from someone asking why you called them and didn't say anything?"

Never. Learn to close your phone?

And every non-flip style phone that I've seen has a locking mechanism to avoid accidental button presses. Use it.
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Yakko Warner, 11 Sep 2009 @ 10:43am

Re:
Ah, super, so it's a combination of a bad law, a bad attitude, and the officer's power trip.

So if a cop is having a bad day when he catches you jaywalking with your MP3 player, he can slap you with an additional charge, and if you get a judge in a bad mood who refuses to dismiss the charge...
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Anonymous Coward, 11 Sep 2009 @ 10:48am

Re: Re: Technology
The button is there to avoid accidental button presses is true, but accidents are unintentional and happen.

For those non-flip phones, maybe it should've been designed so that you must press a certain combination of keys to make a call every time so then there are no more accidents. Except for those times when your butt cheeks press the keys in just the right order...
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Dark Helmet (profile), 11 Sep 2009 @ 10:51am

Sigh
"a story about a guy who was arrested in a dispute-gone-wrong with a car repair shop, but the really odd part is that beyond disorderly conduct and resisting arrest, the guy was charged with both "unlawful wiretapping and possessing a device for wiretapping.""

Please tell me that guy's name was Dick Cheney. Pretty please?
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Davin Peterson, 11 Sep 2009 @ 11:08am

Other players have built-in Microphone Recorders
Other players, such as the Creative ZEN have always had a built in Microphone, long before the iPod, to use as a voice recorder and I can telly you that it works well.
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Anonymous Coward, 11 Sep 2009 @ 11:08am

There should be a law against lazy, grandstanding attorneys who file lawsuits for secondary or tertiary issues.

Secondly, the man may have a legitimate memory issue or learning disability, which may be a reasonable accommodation, akin to handicapped toilet requirements, under the ADA act. Then that could be discrimination. Oooh!
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Chronno S. Trigger (profile), 11 Sep 2009 @ 11:09am

Re: Re: Technology
Yeah, I was thinking about my non flip phone that I had before. To unlock it you had to hit * and a 4 digit code, I had trouble unlocking it when I wanted to. And yet, the phone would call people all the time. My dad's phone douse this and he's got a belt clip. Somehow my sister's phone did this and it is a flip phone. We still haven't figured out how that worked.

I had a Dell Axim a little while ago. It had a built in voice recorder. To use it you had to unlock it then click a button to bring up the software and again to start recording. Regularly I would see random audio files with just background noise.

Now imagine an iPod nano, a device designed to be small and easily used, in someones pocket.
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Overcast (profile), 11 Sep 2009 @ 11:10am

Well - with that logic - wouldn't EVERY store that sold them also be guilty of that?
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Eliot, 11 Sep 2009 @ 11:11am

Sensationalize much?
Admittedly the law is odd. But sensationalizing the story by saying we might be at risk of arrest for carrying a voice recorder?

C'mon, Mike, don't be that guy.
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Anonymous Coward, 11 Sep 2009 @ 11:20am

Re: Sigh
Karma is a bitch, Dick will get his payback one day.
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DJ (profile), 11 Sep 2009 @ 11:24am

Re: Re: Technology
I had a flip phone that would call people randomly. I finally figured out how...

I had my Blue Tooth in my pocket and the button would get pushed if I leaned against things....
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DJ (profile), 11 Sep 2009 @ 11:27am

Re: Sensationalize much?
Wasn't there a topic where everyone hated on someone who was doing just that the other day?....hmmmm
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The Cenobyte, 11 Sep 2009 @ 11:36am

Is there an exception for dash cameras?
If there isn't than every single police officer that has ever used a car with a dash cam in it needed to have the book thrown at them. Also every officer in the state that owns a cell phone, ipod with mic, Camera with video, home tape recorder, PDA needs to be arrested. Also any case where dash cameras where used as evidence needs to be overturned as the camera evidence was obtained illegally.
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Anonymous Coward, 11 Sep 2009 @ 11:38am

Re: Sensationalize much?
Thank God, I've seen the light! Mike says we can finally be safe if we buy something other than an iPod.

Seriously though; how is this even newsworthy? Mike seems to be tripping over beach sand and cracks on a resurfaced tennis court in an attempt to connect iPods to questioning legality.
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Anonymous1, 11 Sep 2009 @ 11:55am

@AC: Go on comment boards making inane comments much?
If you don't think it's newsworthy then get lost, and get bent. Simple see? There's no need to waste our time reading your critique of what is or isn't newsworthy. You're just another person who, probably has been targeted by Mike, probably because of your own stupidity, and you are just lashing out. You're a pathetic worm, with no point. How's that sound?
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Anonymous Coward, 11 Sep 2009 @ 12:00pm

Re:
now we get to see how stupid the judges are.
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Lance, 11 Sep 2009 @ 12:05pm

Wire Tapping Device
The law exists as a companion to the rules on searches and seizures. It is actually a way for citizens to work around being unknowingly taped by police informants. Believe it or not, the police informant can record an encounter without a warrant. the reasoning for this is that the informant could simply recount the conversation (which requires no warrant) so not record it. The charge for possessing wiretapping equipment is a charge after the fact. He got caught with the equipment on his person after he taped the conversation. The analogy to the screwdriver from a previous post was quite accurate.
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Shawn (profile), 11 Sep 2009 @ 12:12pm

Re: Is there an exception for dash cameras?
It shall not be a violation of this section—

...
c. for investigative and law enforcement officers of the United States of America to violate the provisions of this section if acting pursuant to authority of the laws of the United States and within the scope of their authority.

d. for any person duly authorized to make specified interceptions by a warrant issued pursuant to this section.

e. for investigative or law enforcement officers to violate the provisions of this section for the purposes of ensuring the safety of any law enforcement officer or agent thereof who is acting in an undercover capacity, or as a witness for the commonwealth; provided, however, that any such interception which is not otherwise permitted by this section shall be deemed unlawful for purposes of paragraph ...
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Anonymous ..., 11 Sep 2009 @ 12:14pm

Re: Re: Sigh
Yeah, he will have to try to live with the health care program he came up with. Oh, wait he didn't do that it was Obama. Then again he wouldn't have to live with it because he has a much better plan that we all government employees have.
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Shawn (profile), 11 Sep 2009 @ 12:16pm

Re: Wire Tapping Device
While I was in the law I saw the section that explains this-

5. Possession of interception devices prohibited.

A person who possesses any intercepting device under circumstances evincing an intent to commit an interception not permitted or authorized by this section, or a person who permits an intercepting device to be used or employed for an interception not permitted or authorized by this section, or a person who possesses an intercepting device knowing that the same is intended to be used to commit an interception not permitted or authorized by this section, shall be guilty of a misdemeanor punishable by imprisonment in a jail or house of correction for not more than two years or by a fine of not more than five thousand dollars or both.
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vidiot, 11 Sep 2009 @ 12:16pm

Recording vs. playing
I'd always thought that most recording-consent laws were less concerned with the simple act of recording and more concerned with it being played for others... or EVER being played, for that matter. Kind of like the tree falling in the forest... if the recording is never heard by anyone, there's no potential for harm. And with a consent law in place, you can never (legally) play it back for a third party. Obviously, that's not the case here.
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Dark Helmet (profile), 11 Sep 2009 @ 12:18pm

Re: Re: Re: Sigh
"Then again he wouldn't have to live with it because he has a much better plan that we all government employees have."

Was that a Freudian slip informing us that you're a government employee?
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NullOp, 11 Sep 2009 @ 1:22pm

Wiretaps
This is just a case of a DA hitting the defendant with everything he/she can. Its also a matter of how MA defines "wiretapping." The mechanic was probably the DA's brother-in-law:=>~
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Tracer49, 11 Sep 2009 @ 1:48pm

Nano voice recording
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Tracer49, 11 Sep 2009 @ 1:50pm

Nano voice recording
What a fucked up law. With a world of scammers we all need tools to protect ourselves.
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ChadBroChill (profile), 11 Sep 2009 @ 4:36pm

One more step . . .
towards the world where everyone is breaking the law, but it is only enforced at the whim of the government. i.e. Totalitarian State

/free us/
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Anonymous Coward, 12 Sep 2009 @ 3:02am

Re: SOP for criminal law.
The problem is that nearly EVERYONE carries at least a cellphone, and most of those can be used to record conversations.
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okwhen (profile), 12 Sep 2009 @ 5:17am

Wire Tapping
Our government under the USA PATRIOT Act is recording every conversation, internet transaction, bank transaction, street camera and so on. Moreover, the thing is, no one seems to even give a shit and chime in on something like this. Until people stand-up and fire these so-called representatives and take part in their country you get what you deserve. Americans have fallen into a heaping pile of shit and unfortunately, the majority of them are enjoying it.
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Thomas (profile), 12 Sep 2009 @ 8:35am

Govenment...
the U.S. government has lots of enemies:
a. Terrorists
b. Unfriendly foreign countries
c. U.S. citizens minding own business.

Of the 3, the government hates its' own citizens the most.
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Rekrul, 12 Sep 2009 @ 6:05pm

My state has this same idiotic law about recording conversations. Apparently, you're supposed to inform the person you're talking with that they're about to incriminate themselves on tape, before you get them to incriminate themselves on tape.

"Your honor, this person stole a large sum of money from me. He also committed perjury by lying to this court. I could prove beyond a shadow of a doubt that he stole the money and lied about it, only it's illegal for me to do so because I can't legally record his confession."

Yeah, that makes sense...
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Runcible, 12 Sep 2009 @ 10:37pm

The eleven states
Anyone know what the other ten are?
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Anonymous Coward, 12 Sep 2009 @ 10:50pm

All you need to do is wear a small label warning people that they may be under audio surveillance. *shrug* Works the for police in California.

@Runcible:
* California
* Connecticut
* Florida
* Illinois
* Maryland
* Massachusetts
* Michigan
* Montana
* Nevada
* New Hampshire
* Pennsylvania
* Washington
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Anonymous Coward, 13 Sep 2009 @ 3:58am

Why do you think you need to relate everything to iWhatever products from the specific company?

The story clearly mentions an Olympus product and voice recording is available in thousands of other products too.
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wvhillbilly (profile), 13 Sep 2009 @ 7:02pm

Re: Re: SOP for criminal law.
Sounds like Orwell's "1984" warmed over.
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Josh - To common a name. This is me. (profile), 14 Sep 2009 @ 10:59am

Re: Re: Technology
That's funny stuff. I've had my dad call me and ask why I just called him. But my phone was locked and the call log did not have any outgoing call to him for over 24 hours. so how does that work?
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Josh - To common a name. This is me. (profile), 14 Sep 2009 @ 10:59am

Re: Re: Technology
That's funny stuff. I've had my dad call me and ask why I just called him. But my phone was locked and the call log did not have any outgoing call to him for over 24 hours. so how does that work?
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Jrosen (profile), 14 Sep 2009 @ 1:32pm

Re:
Glad to see Texas isn't on there. I used to live in MA, and yeah, it's a pretty f'ing stupid law.
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