Police And Courts Regularly Abusing Wiretapping Laws To Arrest People For Filming Cops Misbehaving In Public Places

from the to-protect-and-serve? dept

Back in April, we wrote about the case of a motorcyclist in Maryland who was wearing a helmet-mounted camera while riding his motorcycle (admittedly, above the speed limit). As he stopped at a traffic light, an off-duty police-officer in plain clothes and an unmarked car jumped out of his car with his gun drawn. All of this was caught on video. No matter what you think of the cop's reaction, what happened later is ridiculous: after the biker, Anthony John Graber III, posted the video from his helmet cam to YouTube, he was arrested for illegal wiretapping, based on Maryland's two-party consent rule for recording. As we explained at the time, wiretapping laws that require all parties to consent were not, at all, designed for this type of situation.

However, apparently this sort of thing is becoming all too common -- and stunningly, many courts are siding with the cops. Gizmodo recently had a good article highlighting how police in states that require all parties to consent to recordings have been using this law against being videotaped in public, and the courts are siding with them. What's really scary is that most of those laws even have clearly written exceptions for recording in public places "where no expectation of privacy" exists.

Yet, the police and the courts both seem to ignore that part of those laws:

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler's license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

In 2001, when Michael Hyde was arrested for criminally violating the state's electronic surveillance law -- aka recording a police encounter -- the Massachusetts Supreme Judicial Court upheld his conviction 4-2. In dissent, Chief Justice Margaret Marshall stated, "Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals...." (Note: In some states it is the audio alone that makes the recording illegal.)

The selection of "shooters" targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate.

That last sentence is the real problem here. Two-party consent laws were clearly designed to be used in situations where someone was being recorded privately -- such as over a phone call, or in a private conversation. When police are doing things (especially questionable activities) out in public, we should be encouraging the public to record those incidents and report them. The laws are being abused to try to stop people from whistleblowing on bad behavior by police. That has nothing to do with the purpose of two-party consent laws. It's really scary that the courts didn't immediately throw out these cases.

Filed Under: abuse, police misconduct, wiretapping

Bad Ideas: ACORN Sues Videotapers For Illegal Wiretapping

from the streisand-went-to-acorn? dept

Sometimes these things just make you wonder what people are thinking. If you follow political news at all, you've no doubt heard about the whole ACORN scandal, with workers at the organization being filmed having no problem offering advice to a fake "pimp and ho" on how to handle the tax implications of trafficking in underage sex workers. The whole thing has been pretty ridiculous, with pretty much everyone holding any sort of political office shoving each other aside to distance themselves (and any gov't funds) from the organization. Honestly, if you've ever watched Candid Camera (dating myself) or any of its modern equivalents, I'm not really sure that getting a few people to do stupid stuff on camera really says all that much about an organization, other than that it needs to better train people, but what really calls ACORN's judgment into question is its decision to sue the folks who made and financed the videos for an "illegal wiretap." Even if they broke wiretapping rules by recording the meeting without letting the worker know, no good can come from this lawsuit. In that link, Andrew Moshirnia from the Citizen Media Law Project goes through a variety of reasons why it makes no sense to sue, even if they have a chance of winning the lawsuit. All it does is call more attention to the whole thing at a time when the organization should be apologizing profusely and detailing what steps it's taking to make sure such things never happen again. Suing just makes the organization look like it still defends those actions. ACORN screwed up big time, and it's only adding to its troubles by trying to sue those who exposed the organization for an illegal wiretap.

Filed Under: streisand effect, wiretapping
Companies: acorn

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

from the that's-not-good dept

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.

Filed Under: massachusetts, voice recorder, wiretapping

Legal Questions About Facebook's Blocking Of Links To The Pirate Bay

from the is-that-legal? dept

Last month, the news broke that Facebook had started blocking any and all links to The Pirate Bay... including links in private messages between two users. Wired is now exploring whether or not Facebook has violated the law in censoring private communications between two people. While I find Facebook's actions to be questionable, I can't see how/why they'd be illegal. It's just an automated filter. The EFF is suggesting it might violate wiretapping laws by "looking at" private messages, but if that's true, any ISP-level spam filter probably faces the same legal questions.

That said, what is troubling is Facebook's defense of the policy, claiming that it is allowed to do so, because under its terms of service, it says users cannot "disseminate spammy, illegal, threatening or harassing content." But, as the Wired article shows, there's plenty of legit content on The Pirate Bay as well. The reporter and his editor tried to send a link via private message to a public domain book on The Pirate Bay, and had it rejected, claiming that it was an abuse and the sender would be reported. While Facebook has a right to decide how it runs its service, it's quite disappointing that it would outright declare any link to The Pirate Bay to be somehow illegal. That's simply not true.

Filed Under: blocks, wiretapping
Companies: facebook, the pirate bay

Italian Cops Complain That They Can't Listen In On Skype

from the attention-criminals dept

Italian police are complaining that criminals there are increasingly turning to Skype to communicate, having discovered that it's essentially impossible for the cops to listen in on their conversations. Italian police aren't the first to notice this: German authorities were caught talking to a vendor that offered some cumbersome Skype-tapping software, while Skype itself didn't deny that the Chinese government had the ability to monitor Skype conversations. Lots of countries have banned Skype, often to protect the revenues of incumbent (or state-owned) telecom operators, but its encryption -- apparently strong enough to frustrate police around the world -- could provide more ammo for future bans, particularly in repressive nations. Italy, though, could be an interesting place for this battle to play out. While police there love their wiretaps, politicians don't: after a number of political figures have been embarrassed by leaked recordings of their conversations, they're trying to change laws to limit the cases for which wiretaps can be used, and to bar the reporting of details from wiretaps until after convictions are delivered in criminal cases. Perhaps instead of trying to change the law, Italian politicians could just start talking on Skype instead.

Filed Under: italy, wiretapping
Companies: skype

NSA Whistleblower Claims US Journalists Were Regularly Spied On: Everything Collected

from the that-doesn't-seem-legal dept

A bunch of folks have been sending in the news, as revealed by Russell Tice, who was one of the major "whistleblowers" on the NSA's questionable warrantless wiretapping activities, that the NSA was not just (as the gov't has claimed) spying on known terrorist threats, but was spying on journalists on a regular basis. Specifically, they were collecting pretty much everything (emails, phone calls, etc.) on certain journalism organizations. He explains that he was officially put on a project supposedly to "weed out" that info, but that it was a deception so that the NSA had some cover if called on it. Instead, he found that all of the data was being recorded. This seems to be an even bigger breach of the surveillance laws. Now, before some people jump up and down in the comments about protecting us from terrorists -- the point here is that there are perfectly good laws allowing intelligence representatives to tap into communications of potential terrorists. The problem here is that it appears the administration went well beyond that, spied on those who were not at all involved in terrorist activities and did not use the legally prescribed process of obtaining warrants (probably because they never would have been granted).

Filed Under: journalists, nsa, russell tice, wiretapping

EFF Sues The Gov't Twice In One Day: Over Surveillance And ACTA

from the busy,-busy,-busy dept

The EFF sure has been busy today. First it filed a lawsuit against the US Trade Representative for keeping info on the ACTA negotiations secret, and then it sued the NSA, President Bush and Vice President Cheney over the warrantless wiretapping issue. Must be a busy day at the EFF office. In both cases, it seems likely that the lawsuits may draw some additional attention to the issues, but it seems unlikely to have much of an impact on actual government policies.

Filed Under: acta, eff, government, lawsuits, nsa, surveillance, wiretapping
Companies: eff

A Lot More At Stake In TorrentSpy vs. MPAA Email Snooping Lawsuit

from the wiretapping-laws dept

For a few years now, we've been covering the battle between TorrentSpy and the MPAA. While TorrentSpy has given in and shut down on the question concerning the operations of its business, there was a separate legal question that is still being fought in court. As we noted recently, TorrentSpy has appealed the judge's ruling that the MPAA didn't break any laws in gaining access to its executives' emails. As you may recall, the MPAA hired a guy who hacked into TorrentSpy's servers to send copies of all the emails to himself first, which he then sold to the MPAA (he later regretted this decision and confessed to TorrentSpy, which is what resulted in the lawsuit in the first place). When the issue first came up in court, the MPAA played dumb, and pretended that it assumed the guy had legal access to the emails.

While this may seem like just a straight privacy case, the EFF, along with the ACLU and others, have filed a brief noting that there's much more at stake here. Specifically, the EFF is concerned that the court ruled that since the email messages were not technically "intercepted" under the wiretap act, due to the fact that the emails were stored, however briefly, on a mail server before they were copied and re-forwarded. In other words, as the EFF points out, if you have access to any server that handles a message as it travels across the internet, it's not "intercepted" for you to read that message. That has huge and very dangerous implications for any sort of internet wiretapping -- suggesting that as long as the government routed all communications through its own machines, it could read everything without a warrant. This case is about a lot more than a BitTorrent tracker battling the MPAA.

Filed Under: email, surveillance, wiretapping
Companies: mpaa, torrentspy

ACLU Sues Over New Surveillance Act

from the ain't-over-yet dept

Following Congress granting President Bush the "get out of jail free" card he demanded, it probably comes as no surprise that he's signed the bill into law -- claiming (laughably) that the bill was designed to "protect the liberties of our citizens." It's unclear what in the new bill does that -- though there's plenty that does the opposite. Almost immediately, the ACLU has sued to challenge the constitutionality of the bill, saying that it appears to violate the 4th Amendment against unreasonable search and seizure without probable cause. Meanwhile, the EFF is also preparing to sue over both the telco immunity issue and the expanded surveillance powers. All of these efforts are probably long shots, but it means this isn't over yet.

Filed Under: fisa, surveillance, telco immunity, wiretapping
Companies: aclu, eff

Massive Backlash Against Sweden's Internet Spying Bill

from the and-the-response? dept

We were surprised that politicians in Sweden approved a highly questionable bill that allowed rather widespread spying on all sorts of internet communications, despite widespread protests. Of course, now that the bill has become law, it seems that the protests are only getting much, much louder, going beyond the initial group of bloggers complaining to the mainstream press, and including large companies like Google and Telia moving servers out of Sweden to protect their users. Plus, nearby Belgium is threatening to sue, pointing out that Belgian citizens may be spied on without any apparent reason. Amazingly, the politicians who approved this bill are staying largely silent, despite the growing clamor about it. They originally tried to brush off the complaints from "spirited amateurs" who just need to just need to "calm down." But that doesn't seem to be working very well.

While it's unclear what will happen here, this is just the latest in a long line of recent efforts to bring together people to call attention to questionable political moves that politicians in the past have been able to sneak through with little public scrutiny. While there is always some risk of misdirecting the potential "mob mentality" that can arise in these situations, it should make politicians start to think twice before believing they can just sneak through any law.

Filed Under: backlash, surveillance, sweden, wiretapping