Federal Court Says Massachusetts' Wiretap Law Can't Be Used To Arrest People For Recording Public Officials

from the because-duh-this-was-decided-seven-years-ago dept

Seven years ago, the First Circuit Court of Appeals released its Glik decision. This decision found that recording public officials was protected by the First Amendment, overriding Massachusetts state law. The state wiretap law says recordings must have consent of everyone captured on the recording. The Appeals Court said recording police officers while they performed their duties in public was clearly covered by the First Amendment. The opinion also dealt with some ancillary Fourth Amendment issues, but seemingly made it clear these recordings were protected activity.

The law remained on the books unaltered. Thanks to legislative inaction, the law is still capable of being abused. Since the Appeals Court didn't declare the law unconstitutional, or even this application of it, it has taken another federal court decision nearly a decade later to straighten this out. (h/t Courthouse News Service)

The ruling [PDF] deals with two First Amendment cases. One deals with activists recording cops. The other deals with another set of activists -- James O'Keefe's Project Veritas -- and its secret recording of Democratic politicians. The specifics might be a bit different, but the outcome is the same: recording public officials is protected by the First Amendment. The state law is unconstitutional.

Consistent with the language of Glik, the Court holds that Section 99 may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions.

That just reiterates Glik's findings. The Massachusetts federal court goes further, though:

The Court declares Section 99 unconstitutional insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions. The Court will issue a corresponding injunction against the defendants in these actions.

The court also points out the state government's response to the Glik ruling was wrong. The ruling did not limit itself to "openly" recording public officials. It said the First Amendment protected the recording of public officials performing public duties whether or not government officials knew they were being recorded.

In October 2011, the bulletin was accompanied by a memo from the Commissioner citing the Glik decision. The memo instructs officers that “public and open recording of police officers by a civilian is not a violation” of Section 99. The cover memo for the May 2015 recirculation “remind[s] all officers that civilians have a First Amendment right to publicly and openly record officers while in the course of their duties.”

[...]

But Glik did not clearly restrict itself to open recording. Rather, it held that the First Amendment provides a “right to film government officials or matters of public interest in public space.”

The court says siding with the government's interpretation would just result in more bogus arrests under the state's wiretap law.

But the training materials go beyond telling officers when it is impermissible to arrest; taking a narrow construction of Glik, they also communicate that it is permissible to arrest for secretly audiorecording the police under all circumstances. In other words, it gives the green light to arrests that, as the Court holds below, are barred by Glik.

This ruling should put an end to that. You'd think the last ruling would have done the job, but despite the Appeals Court never ruling that secret recordings of public officials were illegal, the state decided to interpret the decision this way, leading directly to the lawsuits requiring the record to be set one more time, seven years down the road.

Filed Under: 1st circuit, first amendment, first circuit, free speech, massachusetts, police, politicians, public accountability, recording

Whistleblowers Should Be Allowed A 'Public Accountability' Defense

from the great-ideas dept

We've written numerous times about how one of the major problems of the Espionage Act, which the Obama Administration has used more than twice as many times as all previous administrations combined, is terrible in part because there is no whistleblowing defense. In fact, any and all evidence of the public interest in revealing the information is inadmissible as evidence. Instead, the Act just focuses on whether or not information was released. For hopefully obvious reasons, this has tremendous (and dangerous) implications for free speech and whistleblowing (something President Obama claims to strongly support).

However, Harvard Law professor/Berkman Center guru, Yochai Benkler, has proposed creating a special Public Accountability defense for national security leakers and whistleblowers, which he outlines in a recently published paper. The proposal is well worth reading. As Benkler notes, there is evidence that the most recent round of leaks are important for democracy, because they are challenging the legitimacy of intelligence community and government policies.

If legitimacy crisis, rather than technological change, is the primary driver of the increase since 2002 of the particular class of leaks that is most important in a democracy, then the present prosecutorial deviation from a long tradition of using informal rather than criminal sanctions represents a substantial threat to democracy. In particular, it threatens public accountability for violations of human and civil rights, abuses of emergency powers, and unchecked expansion of the national security establishment itself. Seen in that light, aggressive prosecutions are merely a symptom of the self-same post-9/11 national security overreach that instigated the legitimacy crisis: they manifest the government’s need to shield its controversial actions from public scrutiny and debate.

The deep degree of secrecy and lack of accountability means that these leaks are incredibly important in actually making sure that these government efforts are, in fact, aligned with democratic values:

Secrecy insulates self-reinforcing internal organizational dynamics from external correction. In countering this tendency, not all leaks are of the same fabric. “War story”-type leaks that make an administration look good or are aimed to shape public opinion in favor of an already-adopted strategy or to manipulate support for one agency over another, trial balloons, and so forth, are legion. While these offer the public color and texture from inside the government and are valuable to the press, they do not offer a productive counterweight to internal systemic failures and errors. Some leaks, however, provide a critical mechanism for piercing the national security system’s echo-chamber, countering self-reinforcing information cascades, groupthink, and cognitive biases that necessarily pervade any closed communications system. It is this type of leak, which exposes and challenges core systemic behaviors, that has increased in this past decade, as it did in the early 1970s. These leaks are primarily driven by conscience, and demand accountability for systemic error, incompetence, or malfeasance. Their critical checking function derives from the fact that conscience is uncorrelated with well-behaved organizational processes. Like an electric fuse, accountability leaks, as we might call them, blow when the internal dynamics of the system reach the breaking point of an individual with knowledge, but without authority. They are therefore hard to predict, and function like surprise inspections that keep a system honest. By doing so, these leaks serve both democracy and security.

To deal with this, Benkler says that Congress should act and clearly create that "Public Accountability" defense.

Aggressive prosecution of national security whistleblowers and accountability leaks threatens to undermine the checking function that whistleblowing provides. To address this threat, I propose that Congress adopt a new Public Accountability Defense as a general criminal defense, on the model of the necessity defense. The defense would be available to individuals who violate a law on the reasonable belief that by doing so they will expose to public scrutiny substantial violations of law or substantial systemic error, incompetence, or malfeasance even where it falls short of formal illegality. It is most important to the leakers themselves, but would also be available to journalists and others who participate in disseminating the leaked information. It would provide a defense not only against specific criminal provisions protecting classified materials, but also against any charge brought for actions arising out of the same set of facts involved in the leak.

The full paper goes into much more details and is well worth the read. It makes it clear that this is not the only, or even the best, way to protect whistleblowers. In fact, more direct whistleblower protections could be quite valuable. But, in general, adding this public accountability defense, similar to a "necessity" defense, both makes sense and would be a useful tool for many people who have good reasons for what they're doing when it comes to leaking information.

Filed Under: chelsea manning, ed snowden, espionage act, leaks, public accountability, public accountability defense, whistleblowing, yochai benkler

Police Chief Publicly Disciplines Officers On Social Media

from the welcome-to-the-future dept

All too often, we discuss cases of apparent police abuse and instances of law enforcement organizations closing ranks around the abusers. Far too many stories of police destroying evidence of misconduct, massively dismissing complaints against officers, and the violation of some of our most basic rights as citizens have resulted in the permeation of a culture of mistrust. Now, despite these highlighted stories, I'm of the belief that the vast majority of law enforcement officers perform their admittedly difficult duties admirably. That said, when the organizational bureaucracies that run these fraternal orders undermine the public trust, even at a punctuated pace, the resulting public culture is immensely harmed. Citizens are demanding more transparency and accountability from their public servants, perhaps none more so than those that are charged with serving and protecting us.

Well, in an apparent attempt to meet that demand, one police chief in Dallas is taking to social media to publicly announce when his officers are disciplined.

Dallas Police Chief David O. Brown has fired or disciplined 27 officers and employees in the last year. And every time he brings down the hammer, he announces it on Facebook and Twitter, specifying exactly who the men and women are and what they did. On Dec. 30, it was five officers and a 911 call operator.

Each tweet and post outline what the nature of the misconduct was, the punishment, and always notes that the officers have rights as accused, including appeal. But don't let that fool you. Chief Brown is very direct, very specific, and names the accused fully. For instance:

I have terminated SC Frank Della for public intoxication, damaging a person's property, and making offensive contact with a person. — Chief David O. Brown (@DPDChief) December 30, 2013

Under Civil Service rules, SC Della has a right to appeal his discipline. — Chief David O. Brown (@DPDChief) December 30, 2013

I'll admit, this is an interesting way to achieve some transparency, and for those that might distrust or dislike law enforcement in general it may be a tantalizing policy to publicly shame such bad actors, but I'm not finding within me the desire to cheer gleefully for this type of thing. Public shaming is a powerful thing. And that's true whether the accused ends up being guilty or innocent. I wonder if this might be a step too far. True, these officers are public servants, they work for us, and any effort at transparency to the public is a good thing, but I'm not certain there's a great deal of value in this beyond a public spectacle and some feel-goods.

Feel-goods aren't what we need. I'm more interested in more substantive reform to the entire relationship between LEOs and the public than forcing a few of them to wear the social media scarlet letter.

Filed Under: dallas, david brown, discipline, police, public accountability, social media