Over the last couple of weeks I have written a couple of quick posts about the Maryland State’s attorney’s office prosecuting citizens under the wiretapping statute. To summarize, the statute makes it a crime to audiotape anyone without consent. (The statute is limited to audio only )Sounds simple enough, right? If you want to tape someone’s oral communication, you must obtain their consent. Oral communication is defined as “any conversation or words spoken to or by a person in a private conversation” Unfortunately for the masses, the term “private conversation” was not defined for us and lord knows we can’t actually use our own judgment on these things, so we had to sit around and wait to find out what the powers that be deemed it to mean.
Luckily for us, the Maryland Attorney General, in 2000, issued an opinion stating that Montgomery County police were allowed to have video and audio recording devices in their car and that audio taping conversations with citizens during a traffic stop while standing on the side of the road was legal. The AG specifically said:
Statements that a person “knowingly expose[s] to the public” are not made with a reasonable expectation of privacy and therefore are not protected as “oral communications” under the State and federal wiretap laws. Malpas v. State, 116 Md. App. 69, 695 A. 588 (1997). See also John Doe Trader Number One, 889 F.2d 240, 242-44 (7th Cir. 1990) (statements made by broker on floor of futures
exchange were “expos[ed] … to the public” and therefore not “oral communications” under federal statute); Holman v. Central Arkansas Broadcasting Co., 610 F.2d 542 (8th Cir. 1979) (violation of federal statute to record loud complaints of municipal judge jailed for public drunkenness as they were not made with expectation of privacy).
To summarize, if you are having a private conversation – say on the telephone or in a private corner somewhere – you cannot have an audio recording device on unless the other party says you can. Now, if you are in that private corner and you are yelling and someone records it, that’s fine since you cannot have a reasonable expectation that your yelling is private. If you are pulled over by the police and standing on the side of the road with thousands of people driving by, not private. Got it?
So, now that we’ve had our lesson on what the statute says, what the Attorney General said in response to the police being able to tape interactions with the public (and good for Montgomery County cops, too – I’m glad I set up shop here), we should be able to just move forward and exercise our right to videotape our interactions with our men and women in blue, right? I mean, what’s good for the goose is good for the gander, isn’t it? If police officers (who work for us, don’t they?) can tape me, I should be able to tape them, especially if we are in a clearly public place, it makes sense, doesn’t it? I mean, what’s private about a public highway or the inner harbor or the Preakness?
You, dear reader, fellow taxpayer, are not allowed to tape the police. They may videotape themselves
breaking into your home executing a lawful warrant, or videotape the shooting of your seven year old child so the squad can be on The First 48 executing a less than lawful warrant, but you cannot do the same, at least not in Maryland.
So now, sons and daughters of Maryland, we need to ask why it is illegal for you to tape public interactions with police officers. The state, though, wants to know what the big deal is. In fact, in this morning’s Washington Post, the assistant state’s attorney who is prosecuting Anthony Graber was surprised that anyone even cares about this law since they’ve prosecuted people under this statute just recently and no one batted an eye:
The attention the Graber case is receiving has surprised Harford prosecutor Joseph I. Cassilly, who said his office has prosecuted similar cases before, including one within the past year against the passenger of a car that was stopped during a drug investigation who started taping officers with a cellphone camera. Cassilly said he didn’t know the status of the case because the prosecutor handling it has been out sick.
“The question is: Is a police officer permitted to have a private conversation as part of their duty in responding to calls, or is everything a police officer does subject to being audio recorded?” Cassilly said.
I may not be the sharpest tool in the shed, but let me respond to Mr. Cassilly’s question: Generally, yes, Mr. Cassilly. Just about everything a police officer does should be subject to audio recording. It should be public. Why shouldn’t it be? I’d really like to have an answer to that question. Just one. One teeny weeny logical, rational answer as to why a police officers actions should not be subject to audio recording? If the police are supposed to be there for the public good, why should anything they do that is supposed to be in furtherance of that public good be private?
OK, so maybe some things they do should be private. I can give them that. Take a wizz, talk to your girlfriend, maybe even talk to victims of crimes you are trying to solve. These are private things. And, the wiretap statute described above clearly states that oral communications are those conversations where you would have a reasonable expectation of privacy. (We all know how that whole fourth amendment reasonable expectation of privacy thing has been going – almost nothing is private any longer and our expectation that it should be so has been reduced to rubble.)
We citizens have let ourselves get to this point. Allowed ourselves to let the fox run the hen house, let ourselves be led to the slaughter, and every other cliche and trite statement about just giving it all away for nothing. Mr. Cassilly thinks his office should be left to continue to prosecute people under this statute, unfettered. And it looks like we might just let him. The man is surprised that people care about this prosecution. Surprised. That people care. That they are being treated like playthings for the government.
So, ordinary non-lawyer reader, what to do? Well, make a stink. Write to the Attorney General and tell him this is total bullshit. Call your legislator and tell him or her that if Gansler won’t issue an opinion on the matter that is in favor of the citizens of Maryland, they’d better be willing to step up to the plate and change the law.
I use the phrase ‘walk between the raindrops’ quite a bit. I know its an old phrase, but I first heard it in a Joydrop song called “Beautiful Like You“. Apparently, its also the name of a Steely Dan song. I use it in reference to the regular folks who just live a regular life and assume its always going to be that way. I’m sorry, dear friend, but the reality of things is that life sometimes gets you. You go to bed with your wife of twenty years lying next to you and when you wake up she’s gone. Or you go to bed with your husband of ten years lying next to you and the next morning the feds are breaking down your door. I know, I know, it couldn’t happen to you. It wouldn’t. But realize the forecast always calls for rain. Someday, you might get wet. Wouldn’t it be best to have an umbrella, just in case?