Boston cops: citizen recording of abusive busts is "illegal wiretapping"

Boston cops are using the Massachusetts electronic surveillance laws to arrest and prosecute citizens who use their cellular phones to record abusive arrests. Though they haven't been successful in prosecuting the acts, it hasn't stopped the arrests -- presumably the point isn't to secure convictions, but rather to chill the recording of illegal police activity. However, police have convicted citizens who secretly recorded their own abusive arrests, charging them with illegal wiretapping.

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.
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.

Police fight cellphone recordings (via Interesting People)

(Image: Marathon Monday, a Creative Commons Attribution photo from cherrylet's photostream)

Previously:

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

MORE: Action

More at Boing Boing

Ants and Stars: Bruce Sterling and Jasmina Tesanovic visit the Sardinia Radio Telescope in Italy

The Snowden Principle

delt664

For clarification, this is based on a Mass. law that effectively criminalizes audio recording of an uninformed party. A case based on this law went to the Supreme Court, and the court found that the citizen who secretly recorded an encounter with police was in violation of this law specifically because it was done in secret.

This makes it clear that open and public recording of anyone is legal under the Mass. law. This is an example of Police twisting and distorting laws to protect themselves from being held responsible for their actions.

The ironic thing is that this law was originally intended to protect peoples civil liberties, and now it is being used as a screen for certain bad elements within the police department to trample on citizens rights.

Disclaimer : I am not a lawyer, I just play one on the interwebs.
Afterthought

When on duty, they should be surveilled.
Kupaurk

They should be careful with this argument. It would mean that police dashboard cameras would require a warrant in order to be turned on.
Anonymous

Man, I love living in this town. So friendly!

But seriously, folks, what did you expect from a group of public servants who locked down the entire city over an Aqua Teen Hunger Force advert, a glorified Lite Brite?

One has to wonder if the Boston cops have marked out the blind spots in the city’s CCTV cameras, so they know EXACTLY where to arrest you without pesky evidence?
Anonymous

Just cookin’ the frog a little bit more…
PaulR

So, how can ANYTHING with audio be recorded in MA, without it being called “illegal electronic surveillance”?

If the phone’s microphone was turned off (I realize that almost no phone has this ‘feature’, but bear with me), then the cop wouldn’t have been able to arrest the lawyer, no?
- mdh
  
  The harassment itself is the punishment, and that experience will make most people think twice before doing it again. Remember, this is the same department that freaked out over strangely placed lite-brite’s, and managed to kill a college kid with a non-lethal weapon after a local sports victory.
  
  Boston PD motto: “you can beat the charges, but you can’t beat the ride”
- Cildar
  
  @PaulR
  
  There is no restriction on videotaping. If the audio had been off, it would be a crime. (I can almost see your head shaking at that. yes, I know, it’s dumb… the law is an ass and all that).
  
  Any time that you call a company in Massachusetts of any size, you will hear a recording on their customer service line that says they may record your call. Otherwise they would be committing a crime.
Anonymous

Boston police are assholes from my experience. I would hesitate asking a Boston police officer for help. You can not trust them. I have approached Boston police asking them a simple question nicely and they swear at me. The other night I nicely said to a boston cop, “If last call is 1:45am at the clubs why do bouncers really force everyone out of the club at 2:00am, shouldn’t people have time to sober up before they are forced to drive off?” The officers response was “Why don’t you go get into a fuckin’ taxi” as his body actions showed he was going for his tazzer or mace.
Boston police do not serve the public, they do not serve the civilians. They serve themselves and that urge they have to bully innocent people around.
Anonymous

Is anyone reading this in a position to take action against Boston PD? These guys really, really need to be made an example of or this crap will spread :(
Anonymous

Public officers on official duty carrying out that official duty have no reasonable expectation of privacy. Glik might not have been able to beat the ride, but he should be well paid for his time and trouble.
Illegal arrest (no probable cause).
Illegal impoundment (no probable cause).
But as long as the police administration gets to steal from the public’s treasury to pay off misbehaving police officers’ tort judgments, they don’t care. What is needed is for the misbehaving police officer to have HIS(HER) bank account levied, HIS(HER) salary garnisheed, HIS(HER) car auctioned for liabilities arising from egregious misconduct. THEN they’ll be careful to obey their own laws, codes, rules and regs.
This lawyer was STUPID. When the cop spoke to him, he should have just turned around and walked off. HE wasn’t under arrest at the moment. Lawyers are like the rest of us when they’re the targets. Run mouth before putting brain in gear.
Shithead

Previous poster’s comment in this thread:

“this has been true for ages, and requires fundamental changes to the power structure of society before it will change.“

This, ladies and gentlemen, is what we need to act on more than anything else. WE THE PEOPLE decide how the laws will be enforced. WE THE PEOPLE need to ensure our interests are foremost here, not some egotistical power-freak cop.

I’m game to fight back. Are you?
Anonymous

Government officials have no expectation of privacy in a public space. They work for us. They should be on video, audio & GPS 24/7.

Besides, how could they object?

Unless they were doing something illegal?!?!
deckard68

Boston has been doing this for years, since before iPhones existed, in fact. It started more than five years ago when a guy who often did dictation turned on his cassette recorder when he was pulled over. (No claims on accuracy — I’m recalling from memory here.) After capturing a filth-laced tirade by the officer, he brought the tape to the police station to file a complaint against the officer, and was arrested. The case did go to a judge, who ruled that police were private citizens, not public servants, and that’s why they cannot be recorded, ever. It is nice to imagine that this would be overturned, but Boston is corrupt.
Neal Deesit

New technology, but not a new problem.

“Quis custodiet ipsos custodes?,” a Latin phrase from the Roman poet Juvenal, is literally translated as, “Who will guard the guards themselves?” The phrase has many idiomatic translations and adaptations, including:

* Who watches the watchmen [or watchers]?
* Who will guard the guardians?
* Who polices the police?
Anonymous

If you want to record the police doing something like that. Use the app called QiK (www.qik.com). It directly streams and stores all the A/V to their server and can instantly upon recording be made fully public to the site of private…

What are they gonna do while people are watching live… or within 15 seconds or live video ???

Just think of the amount of witness’s you can sapena !! Lol
Anonymous

What if you stream the video to someone outside MA jurisdiction instead of recording it? Is that legal?
Danielle_ACLU

Let me first preface my comment by saying that I work for the ACLU of Massachusetts, and one of the men in the article (Glik) is an ACLU client. Obviously, we’re extremely concerned about this.

Most of the time, we’re extremely proud to live in Massachusetts (first to legalize same sex marriage, universal health care, etc.), but we have quite a bit of trouble when it comes to surveillance and oversight.

I just wanted to chime in and say that this is something we’re working on. It’s heartening to see this article get attention beyond the commonwealth.
- mdh
  
  THANK YOU!
Revan343

@Cowicide: Where the hell did that even come from? There was absolutely nothing in what he said implying that the police force should be privatized…

Also, I’d like to point out that not all police suck, in fact a good example of police who seem like pretty cool guys can be found at http://www.boingboing.net/2010/01/14/london-cops-repriman.html
- Cowicide
  
  Where the hell did that even come from? There was absolutely nothing in what he said implying that the police force should be privatized…
  
  Calm down, Francis. I was just taking the ball and running with it.
mikial robertson

Im sick of this facist junk. I thought they are suppose to protect and serve us not suppress and bully, but we all know how often the wrong guy ends up a cop. Some tuffguy or angry person who wants to push people around and be the judge and jury, thats not very jedi like! and so often police officers are not qualified to do their job especially when they dawn a jaded badge. I think of all, the surveillance in the world the most justified would be us watching over the guys we gave guns, cuffs and fast cars to.
WoodE

What the people need is a live feed tool. Qik is one – lets you share live video. So that way even if they get you, get your phone, get your recording, another service has it too and is playing it live. This doesn’t solve the problem of prosecutions and arrests, but it does shine light on the abuses. It’s qik.com, but there could be other tools like this out there.. anybody know of similar things?
Chevan

They’re probably basing their arrests on these bits:

“4. The term â€œinterceptionâ€ means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication;”

“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.”

http://www.mass.gov/legis/laws/mgl/272-99.htm

If I’m reading this right (not at all a lawyer), if the use of a recording device (including anything that can grab audio) is not approved by all parties involved, then it’s deemed an interception, and use of an intercepting device is grounds for an arrest/fine.

It’s a shitty, shitty situation. The police probably claim that they’re following the law as written. However, the law says outright that this is meant to combat organized crime, not restrict general audio taping use to protect their own asses. The law was written to protect the privacy of general citizens, not for the police to abuse to limit the abilities of general citizens.
- delt664
  
  You are not reading this correctly. The consent of all parties is not required. The statute explicitly and repeatedly uses the term “Secretly”. If no recording or hearing is being done in secret, the statute does not apply, along with the line about “prior authority”
  
  Disclaimer: I am not a lawyer, I just play one on the interwebs.
  - Chevan
    
    You’re right, I was wrong about whether this situation would register as “secret recording.”
    
    Again, it’s a shitty situation, since the police seem to be treating any recording as a secret recording.
Anonymous

Santa’s Knee here:

Looks like we should start randomly killing cops — the point isn’t to eliminate the force, but rather to chill illegal police activity…

</end snark>

If those that are given authority by the consensus of the people refuse to abide by the conditions of that empowerment, they should be removed post haste by all necessary means.
Anonymous

They are in the public right of way, which would clearly mean that there is no expectation of privacy. Otherwise google street view would also be a violation, as would simply taking a photo or video of anything in public. We wouldn’t have photo and video journalism without this protection. They just haven’t yet had that multi million dollar civil rights violation lawsuit just yet.
Anonymous

Um how can video taping anything in a public area illegal, wouldn’t CNN msnbc and fox all be arrested and shut down?

Also can’t we Arrest the cops for their dashcams and wireless mics?
paulatz

There is a reason for calling public officers “public”. It is because they serve the people, by mean of the law. They don’t serve the government nor their one legitimate, but personal, idea of justice.

Why a public officer is on public duty, he is working for the people, thus the people (being his boss) have both the right and the duty to control him.
- mdh
  
  never been to Boston then?
- Cowicide
  
  Why a public officer is on public duty, he is working for the people, thus the people (being his boss) have both the right and the duty to control him.
  
  Well, that’s why we need to make them private and turn over the police force to Blackwater. That way they can be completely lawless and answer to no one except an almighty profit motive. It will go nicely with the matching privatized prisons we have now.
Anonymous

The law is on the officers side here. Massachusetts is a two party consent state so in order to record something all parties must consent. Interestingly however you only need consent unless it is absolutely clear to everyone involved that you recording – this is why you see ‘surveillance in use’ signs. I think we need T-Shirts that say ‘warning video & audio surveillance may be in use on this person at any time, you may be recorded, move away if you don’t accept the terms of this agreement’. It’s like a EULA for surveillance. Anyhow, it seems if one yelled ‘I’m going to start recording now’ to the offices it would be ‘absolutely clear to everyone involved’… but I’m not a lawyer.
- Anonymous
  
  The law will always be on the side of the violent police gangs. We should pass a law that all police activity should always be recorded so we can ensure our safety from these people. Of I forgot only we citizen slaves are the danger.
Anonymous

The solution is easy: a phone app that sends audio & video directly to YouTube designed for record only. You can’t erase it without a password (and don’t keep the password on the phone!)
numlokâ„¢

Ghandhicam offers live uploading of recorded media to the web, for just such occasions: http://www.gandhicam.org/
Anonymous

Do NOT talk to cops.. and that guy was a lawyer? lol
ErikO23

It would be very nice if we have an office in the justice department dedicated to policing the police. it shouldn’t be that hard, and it would be nice if there was an authority that when called upon by the public would be able to prosecute police officers like the ones mentioned above.

The right to record an arrest seems pretty solid, so solid that there is probably legal precedent already set. The could should be cut and dry and those officers should face losing their jobs and fine.

For too long, police forces in this country have operated like mobs. It’s time to put them back on our side.
- Lookforthewoman
  
  We have that office already; it’s where the Defence Lawyers hang out.
  
  My bf is a criminal lawyer, and the amount of cases where the Crown (we’re in Canada) just “withdraws” the charges, after the accused has been in jail for months and months, is truly astounding.
  
  Unlike what the TV shows tell us they don’t need evidence to arrest you and throw you in jail for months, costing you your job, your home and often your relationships with friends and family, they only need evidence to convict you.
  
  This story is a perfect example of that.
Anonymous

“police have convicted citizens”

should be

“police have arrested citizens”

Courts convict, cops arrest.
Anonymous

so the police in boston have an expectation of privacy on public streets that the citizens don’t? unbelievable.
Anonymous

ustream has an iphone app, the ultimate in accountability enforcement. record the beating, press the button, and it’s on the internet already. slicker than snot.
xzzy

So does this mean I should call the cops if I see a surveillance camera pointed at me?
jeligula

@ ErikO23. There is an agency like that within the departments themselves, called Internal Affairs. Still, these cops should be taken to task for violating civil rights and do jail time themselves.
ab3a

Maryland is also a two party consent state. This kind of law has been used many times to levy charges against everyone, including media reporters, for undercover video. The recent ACORN scandal video here in Maryland resulted in the Attorney General going after the people who made the video. ACORN was left alone.

There have been other similar cases going back to a notorious story on how a certain chain of Grocery stores handled their meat prior to sale. The store sued successfully against the reporters who made the undercover video.

This law looks like a good idea until you try it out and see who actually gets cases brought against them and for what. I’ve yet to see a good case for such two party laws.
cymk

Its nice to know Boston PD doesn’t give a rats ass about a little thing called the law, that they claim to uphold and protect.
ndp

Hmmm… So what does that mean about dashboard cameras mounted in police cars in Mass.??? If I get pulled over by an officer in that state and find that I am being recorded (without my consent) by their equipment can I reasonably press charges? Obviously not, but the behavior of these officers suggests otherwise.
netdiva

So, how long before this goes to the Supreme Court? This sounds like a pretty clear cut First Amendment case to me.
- jramboz
  
  Actually, I think the Fourth Amendment might be more appropriate.
BookGuy

I don’t understand the “wiretapping” part of this at all. Is the definition of wiretapping so broad that “listening to things transmitted by sound waves through the air in public” counts?
- Anonymous
  
  It depends on the state. In my state, you must have either a warrant or consent from both parties to record anything resembling a conversation. Under the law it is OK to refuse to talk to someone if they will not consent to a recording, but for practical purposes that won’t work – if your bank’s officers refuse to be recorded they can state that they tried to notify you of that unauthorized bazillion dollar overdraft but you refused to have the conversation (meaning, you tried to insist on recording them and they would not co-operate). Similar scenarios with law enforcement – I am required by law to notify you, you ask if I can be recorded, I say “no” and suddenly it’s you that refused to allow a legal notification, not me, because you won’t have unrecorded conversations. It’s different in different states, don’t know about Mass. Some states only require consent from one party, which is more sane.
jramboz

Granted, I am not a lawyer (in one of the internet’s more unfortunate acronyms), but it seems like there’s no way the charges will hold up. These were acts committed in public, by public officials, with no expectation of privacy.
jonathan_v

“However, police /have/ convicted citizens”

Police arrest. Courts convict.

Police do a lot of things that they can’t â€“ and the arresting of people for ‘illegal electronic surveillance’ under these conditions is one of them. It’s a charge that is likely to be dismissed by the courts, and has:

“The statute has been misconstrued by Boston police,â€™â€™ 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. â€œYou could go to the Boston Common and snap pictures and record if you want; you can do that.”

The problem with Massachusetts law â€“ and what we really somehow need Federal laws to protect â€“ is that MA has convicted people in cases where: the event was only seen between a police officer and a pulled over car driver , citing that as a ‘private’ event; and instances where a camera was concealed or hidden during public events, citing the taping as ‘secret’.

Personally, I think that is far more sinister â€“ not that Police abuse their power, but that MA actively prosecutes and convicts those who tape illegal police activity.
technogeek

Well-established law is that anything happening in public may be recorded — by taking notes, by taking recordings, by taking film. The only restriction is on what may be done with those recordings. To show them to someone who wasn’t there at the time, you may need a model release — though that is generally considered to be implicitly granted when the individual is a public figure, and “incidental” portayal of an individual (one face in a crows, not the focus of the picture) doesn’t require that permission. Of course material brought into a courtroom as evidence also doesn’t require that permission.

Someone needs to remind the police of this. Preferably from the top down. With a big hammer.
- zikzak
  
  To show them to someone who wasn’t there at the time, you may need a model release
  
  You don’t need a model release. Unless you want to be able to use the film in a commercial advertisement or something, you never need a model release.
zikzak

It should be stressed that these are illegal arrests. When the police want to arrest you badly enough, the law doesn’t apply – they will invent a baseless justification no matter what. If it weren’t wiretapping, it would be disorderly conduct or obstructing justice.

However, false arrest is a serious matter, and civilians can seek legal recourse and damages later from the police department. (On a self-interested note, settlements from false arrest suits can be very high) If you’ve recorded video of the arrest, you have very solid evidence to support such a suit.

This story is exactly what the cops want. Even if they stop performing these arrests, the publicity gives them (and other cops elsewhere) a reputation for being willing to arrest people who record the police. Don’t buy this intimidation! Yes, it’s true that the police can illegally arrest us arbitrarily – this has been true for ages, and requires fundamental changes to the power structure of society before it will change. But as long as we can create video evidence of illegal police behavior, we’re in a very strong position when it comes to seeking recourse later.
- Lookforthewoman
  
  Wrongful conviction compensation is hard to come by in Canada.
  
  http://www.thestar.com/news/ontario/article/750603–anger-as-baltovich-gets-nothing
  - zikzak
    
    Wrongful conviction is another matter entirely, the subject at hand is people who are being arrested for violating no laws and then having their charges dismissed – meaning that the court already acknowledges that they did nothing wrong. Trying to get judges to rule against cops may not be easy, but it’s far easier than getting judges to rule against judges.
    - Lookforthewoman
      
      You are correct, but I’m pretty sure that restitution for false arrest in Canada would be even harder to come by that compensation for wrongful conviction.
ChibiR

They should take a few notes from the RIAA: Accuse them of copyright violation (“Police officers are copyrighted. Or their uniforms at least.”) and charge $80k per filmed officer. Then offer to settle for “just” a few thousand out of court.
michaelannb

I’m waiting to see is this emerges as an issue in a Nov. 27th beating of a black man by a white police officer in Springfield, Massachusetts. The incident was recorded on a cellphone by a neighbor. This particular officer was videotaped 10 years ago in yet another beating, and has other blots on his record. The only good thing is it does seem to be bringing much of the community together in a demand for a real civilian review board. What will happen to Officer Asher, I don’t know– he’s survived so far.
mgfarrelly

Here’s a perfect example of cops getting in their own way. Whatever “protection” this misuse of the law might afford them is vastly outweighed by the jackboot thuggery of arresting people for documenting a public event involving public officials. Shameful and dumb.

The quavering spokes-chump hiding behind the “interfering with an arrest” argument is just too precious. How is it that someone, armed with a camera, is going to interfere with armed peace officers? Are they going to record them to death? If Lady GaGa can handle a few cameras on the street, so can the cops.
efergus3

Well, at least they’ve got a new hobby besides blowing inoffensive things up.
zikzak

For good info on effective recording of police: http://www.berkeleycopwatch.org/resources.html
- querent
  
  Yeah, copwatch. I was gonna post that link.
  
  Filming the cops is NOT illegal. Not if you don’t interfere. But they do NOT like it. Not at all. But it’s legal. So do it.
  
  I was arrested on drug charges once after a narcotics agent (there to take a stolen car report) forced his way past me into my home. The bastard lied like a fucking child on the stand. I looked right at him and he looked down.
  
  If I ever re-enlist among the ranks of active criminals (and maybe even if I just remain among the ranks of intellectual dissidents), I want surveillance gear at my door and around my house. Fuck that shit. Two can play at this game.
LX

The police requires citizens to believe in their legitimation. If the public believes policemens to work illegal, the police will very soon be outnumbered by people wanting to get rid of them, especially if the government continues its job by making more and more things illegal.

Greetings, LX
Anonymous

These sorts of things stop only when enough people get wrongly arrested, sue and cost the local police department as well as city and state budgets, lots of money. If you are treated badly by the police, sue! Offer the lawyer all the money as long as he or she will represent you for free. Take it from the police, that’s the only way to change their actions.

Look at the lawsuits brought against the NYPD for their draconian action during the 2004 GOP convention. It cost NY millions of dollars… and is why the city of St. Paul bought a HUGE insurance package before the 2008 GOP convention.
flatfive

I want to know why the conversation went like this:

“One of the officers asked me whether my phone had audio recording capabilities,” Glik…said recently… Glik acknowledged that it did, and then, he said, “my phone was seized, and I was arrested.”

And not like this:

“One of the officers asked me whether my phone had audio recording capabilities,” Glik…said recently… Glik replied, “I don’t want to talk to you. I want to talk to my lawyer now.”

Those two sentences are 2/3 of the acceptable statements to make when being questioned by police, ingrained in me from time immemorial by my defense attorney father. (#3: “Come back with a warrant.”)
- Lookforthewoman
  
  Agreed.
  
  Best advice from a defense lawyer: If you find a dead body – do not call it in from your home, do not identify yourself, and do not stay at the scene; get as far away as possible and call it in anonymously on a pay phone.
Cildar

The Massachusetts Wiretap Statute (http://www.mass.gov/legis/laws/mgl/272-99.htm) makes surreptitious recordings a crime. This is a statute that generally protects people from being recorded by the police and not the other way around.

The State Supreme Court held that the law applied even to citizens recording police during arrests in Commonwealth v. Hyde, 434 Mass. 594, 599, 750 N.E.2d 963 (2001).

All of the arguments raised here about public need and public space were raised and rejected by the court.
- zikzak
  
  So I guess the question is what makes a recording surreptitious. We’re not talking about people wearing wires and buttonhole cameras, here, we’re talking about people holding cellphones at arms’ length, obviously directed at police.
  
  It seems like stating clearly “this is being recorded” would be enough to deal with even a crazy interpretation of that law though, right? Especially since you’d have evidence in the recording that you announced it…
  - delt664
    
    Yep, I believe that as long as all recording equipment is in plain sight, you are not in violation of the law. I would still periodically announce “I am recording video and audio” just to be doubly sure. If you did all that and were arrested anyway, the ACLU would probably back you up.
    
    The fact that police are trying to arrest people for public recording of public servants is disturbing.
  - Cildar
    
    @zikzik You are correct. Announcing that you are being audio taped would be enough. Consent to be audiotaped is not required.
    
    I have often thought merely having a sticker on your window in plain view that says “You are being audiotaped” would protect a person.
    
    I have seen trial courts here rule it not a crime when civilians point what are obviously camcorders at police. Unfortunately, technology has made camcorders small and less identifiable and so those may no longer give enough warning that police are being audiotaped.
    
    Overall, it’s a dumb arcane law whose heart was in the right place but whose application in these circumstances is very wrongheaded.
absimiliard

-abs is proud of his adopted state (MA) most of the time, but *hangs head in shame* over this one *deeeeep F*&#-ing sigh*