
Record police with phone camera in Boston, get arrested - ilamont
http://www.boston.com/news/local/massachusetts/articles/2010/01/12/police_fight_cellphone_recordings/
======
KWD
When I was reading this I was wondering how is this any different than a TV
station showing up with a film crew? They're recording audio the same as the
guy with his cell phone. In the end, it's all about intimidation by the Boston
Police.

~~~
jamesbritt
There is typically distinctions made between mere citizens and Official
Journalists, something I don't get. Look at discussions about bloggers and
their rights to withhold information, or express political views, or failing
to disclose financial incentives regarding matters they blog about. There
seems to be a desire to neatly and authoritatively define what a "blogger"
is[0], and to figure out what special rules apply. I rarely see anyone insist
that US citizens have these basic rights, no matter whether you call what they
do journalism, blogging, or whatever.

I'd like to think that would be true in this case as well, but I bet the same
duality applies; some people get to be in a special class called "journalists"
or "reporters", and so get more rights and privileges than Joe Smoe doing
basically the same thing.

([0] The best is when the MSM talk about "bloggers" as if this was some well-
defined group, with official leaders and common interests.)

~~~
jrwoodruff
This distinction is true when it is in regards to so-called 'shield laws,'
which allow journalists to protect their sources. Without these laws,
journalists can (and have) be held on obstruction of justice charges or worse.
For the laws to work, though, they have to differentiate between journalists
(as in those reporting news) and 'citizen' witnesses who simply don't want to
cooperate in an investigation.

When it comes to recording news events, as in this article, any audio or video
recorded in a public venue (and that is not sold commercially, if I remember
my media law class accurately) is perfectly legal, regardless of who records
it. Someone shooting video through your living room window from the middle of
the street is, theoretically, legal, as it is in view from a public space. If
that person steps on to your lawn and shoots the same video, however, that is
invasion of privacy and probably trespassing as well.

While these videos should be completely legal, the laws governing this type of
activity are usually state and local. It sounds like the law on the books in
Boston is too broad and needs to be challenged.

Of course, IANL; I have a journalism degree and worked in newspapers for 5
years.

As a side note, someone should build a site for theses 'watching the watchers'
videos. I'd be a fan.

~~~
kjhgbhnm
So who is an official journalist?

Do you have to work for a newspaper? As fulltime staff

Does the paper have to be a public company, listed on the NYSE or can you be a
journalist for a local free paper?

Perhaps it would be easier to just make FOX the official state broadcaster

~~~
timwiseman
I do not know why this was downmodded. The last line was somewhat snarky (I
like Fox personally), but these are valid questions and form a genuine and
important debate in many circles.

~~~
jamesbritt
I was about to post much the same questions (minus the Fox sentiment).

How _does_ one decide who is a journalist, and who is not? What makes a
something a publication; what makes that publication a newspaper or a news
source? Is it like jazz or pornography; you know it when you hear it or see
it, but can't really define it?

I can understand wanting some distinction with regards to obstruction of
justice, but I also worry that bestowing special protections on select groups
is prone to political manipulation.

------
callmeed
Stuff like this really annoys me–because I work in the photo industry and love
to take pictures (especially in public). The privacy argument is a joke if you
are in a public place. It only applies if you are in a place where you should
expect privacy (i.e. in your home).

Anyone who keeps a camera with them often (or who is interested in this
topic), should read the following:

[http://www.usatoday.com/tech/columnist/andrewkantor/2005-12-...](http://www.usatoday.com/tech/columnist/andrewkantor/2005-12-29-camera-
laws_x.htm)

[http://www.usatoday.com/tech/columnist/andrewkantor/2006-08-...](http://www.usatoday.com/tech/columnist/andrewkantor/2006-08-11-photography-
rights_x.htm)

<http://www.andrewkantor.com/> (check the PDF here)

<http://www.rcfp.org/photoguide/>

Keep in mind that there is a big difference between _taking_ a picture and
_publishing_ a picture.

EDITED:

Here is another great, printable sheet you can keep with you:
<http://www.krages.com/phoright.htm>

~~~
tungstenfurnace
>the privacy argument is a joke if you are in a public place

Surely not always a joke. If, for example, a couple is kissing in public then
recording them against their will seems wrong to me. Whether it ought to be
_illegal_ is another question.

OTOH it seems to me that the actions of police ought to be regarded as _public
acts_ , and recording them in the public interest ought to be legal.

>Keep in mind that there is a big difference between taking a picture and
publishing a picture

Yes, although the person being photographed doesn't know what the picture will
be used for and so he may feel constrained nonetheless.

~~~
callmeed
>> If, for example, a couple is kissing in public then recording them against
their will seems wrong to me (although whether it ought to be illegal --
dunno)

(keep in mind, I'm mostly talking in the context of still photographs, not
a/v)

I'm sure some parents feel the same about their children and celebrities feel
the same about themselves. Unfortunately, once you step foot in a public
place, you no longer have a * reasonable expectation of privacy*–regardless of
who you are or what intimate act you may be participating in.

>> Yes, although the person being photographed doesn't know what the picture
will be used for and so he may feel constrained nonetheless.

All the more reason for people to be educated and willing to educate others.

I've been accosted on more than one occasion simply for taking pictures in our
downtown park–usually it's some hipster attempting to be impress his friends.
If I'm in a good mood, I'll kindly explain my rights to him. If not, I'll just
keep taking his picture while he talks to me.

------
randomwalker
This is exactly the choice that David Brin presented in "The Transparent
Society" back in 1996:
<http://www.wired.com/wired/archive/4.12/fftransparent.html>

Ubiquitous surveillance is inevitable. The question is whether it is going to
be whether or not the citizenry will have the same power that the authorities
do. Technology is not the barrier; it is a matter of fighting for our legal
rights.

The contrast is stark. One path is Orwellian, whereas the other path, while
eroding some comforts that we're used to, promises us benefits that will more
than compensate for it.

~~~
th0ma5
not only are more of us intimidating each other subtly and slowly through
social grooming on social sites, aren't we also complicit in this surveillance
as voters?

------
rdtsc
> Two-party consent means that all parties to a conversation must agree to be
> recorded on a telephone or other audio device.

There should be a distinction if a party is a public servant on duty. As soon
as the policeman puts on their uniform, is on duty, and is in a public space,
there should be no restriction about recording of what they do.

~~~
rosser
_There should be a distinction if a party is a public servant on duty._

There should be a distinction if the party being recorded is _in public_.
Courts have routinely ruled to the effect that one has "no expectation of
privacy" when out in public. That the party being recorded is a public
servant, engaged in (purportedly) public service just makes it all the more
... well, public.

~~~
Silhouette
Be careful what you wish for. If you declare anything in public to be fair
game, but fail to allow for the possibilities of recording, mining and sharing
data created by modern technology, you may not like the result.

For example, you probably wouldn't mind if I walked past you in the street and
saw you go into a shop. You might object if I followed you around from the
moment you left your home, filmed every shop you went into, what you bought,
what you paid with (including any visible numbers on your cards, any PINs you
typed in, what your signature looked like, etc.) and then put this on the web
along with your name and address.

The idea that privacy is some sort of black-and-white concept is part of the
problem.

~~~
rosser
_You might object if I followed you around from the moment you left your
home..._

You're right; I might. I might also press charges for "stalking", which many
jurisdictions have termed that kind of behavior, making it specifically
illegal.

~~~
Silhouette
So where is the dividing line, then? When does incidental observation (but
stored for all time in a database searchable by the public, say) become
stalking?

In particular, is it possible that no individual act of recording personal
data observed in public would constitute an unreasonable invasion of privacy
(whatever we choose to call that in law) yet the combined total still has the
effect of stalking? Because that is the real problem that, IMHO, the law
hasn't caught up with yet. In a connected, database-driven world, you can't
judge everything in isolation, because it is often the cumulative effect that
is the dangerous thing.

------
credo
Here is a list of the 12 states that require 2-party consent for recording
phone conversations

from
[http://en.wikipedia.org/wiki/Telephone_recording_laws#United...](http://en.wikipedia.org/wiki/Telephone_recording_laws#United_States)
California Connecticut Florida Illinois Maryland Massachusetts Michigan
Montana Nevada New Hampshire Pennsylvania Washington

11 blue states and 1 red state

The Boston cases clearly seem like police abuse of wiretapping laws which were
originally intended to protect citizens talking on the phone (not hide
evidence of physical violence against them)

~~~
timwiseman
Thanks for the list.

I am curious, granted the source is Wikipedia, but the article says that those
states require notification, not consent. Even if these laws did apply to this
kind of in-person interaction, instead of just the phone conversations they
were intended for, would it be valid to argue that clearly and openly
beginning the recording is notification?

------
bonsaitree
Sad. I'm surprised the first subject, a trained lawyer, didn't simply deny to
answer the question concerning his camera. My standard response to any
perceived intimidation by police these days is:

"I'm sorry Mr./Mrs/Sargent/Lt X, but I don't talk to police on material
matters without counsel present."

~~~
bestes
And how does it work?

~~~
bonsaitree
IME, extremely well, but see my previous comment on the general
professionalism of Virginia police. I've had no personal experience with
potentially litigious/confrontational law enforcement encounters outside of
VA.

By immediately asserting your rights, the officer in question knows that they
are not dealing with a person of "legal ignorance". As with communication in
all social interactions, an assertive (but not aggressive) carriage, posture,
positive eye contact, and tone helps a great deal.

Keep in mind that, in most contexts, when I see the triplet of a badge, an
open-carry gun (the gun is key), and a police uniform, my default assumption
is that of a PERSON who's sworn an oath and, consciously or unconsciously,
respects SOME sort of legal authority given their avocation (though it may not
necessarily be true).

FWIW, if you have any doubt, it's worth asking CLEARLY if the presumed officer
in question has "sworn arrest powers in <insert municipality>". Police are
allowed to lie, but they're not legally allowed to "assert police powers" such
as arrest and/or detainment unless they have truly have them. In most U.S.
state codes, there's a clear delineation between what constitutes a "lawful"
and an "unlawful order" by law enforcement. Asserting police powers without
being a sworn law enforcement officer is also usually a felony.

At worst, you may be severely inconvenienced for an "officer's safety" by
being handcuffed and/or temporarily detained on-site, but you've preserved all
of your rights under the law. Fighting temporary detainment is a "sticky
wicket" and generally ill-advised unless you genuinely feel that your life or
the lives of your family are at immediate risk (e.g. driving your pregnant
wife to the hospital, etc.).

------
dlytle
Anyone know of a reliable site that provides state-by-state information on the
legality of recording the police at work?

Seems like this would be a good topic for a little cheat-sheet notecard in
someone's wallet.

------
jellicle
Massachusetts law prohibits SECRETLY recording oral or telephone
conversations. It's pretty clear that whipping out a camera phone, pointing it
at the officers, and pressing "record" is in no way a SECRET recording.

------
Scott_MacGregor
It seems to me like the _Boston Police_ and _The Powers That Be_ who they work
for in Boston do not want any non-police witnesses with video evidence who
could appear in court. I would assume they fear that non-police made video
evidence might conflict with what the officers actually testify to in cases,
and that this would give irrefutable evidence to a judge and jury as to what
really happened.

Every corner store seems to have video surveillance to help deter crime I see
nothing wrong with the public making videos of police officers. To me it
actually seems like a very good idea.

------
guelo
I liked the quote at the end "Had I recorded an officer saving someone’s life,
I almost guarantee you that they wouldn’t have come up to me and say, ‘Hey,
you just recorded me saving that person’s life. You’re under arrest."

IANAL but isn't there something in the law about it having to be applied
consistently?

------
tibbon
The issue here isn't the photo/video part, but the audio part which the police
are trying to say is illegal surveillance.

I have to wonder if the Boston PD is trying to set precedent that such cases
will be thrown out so they can start using more audio recording without
warrants or what. Possibly just trying to cover their own tracks so they don't
have any evidence against them.

Precedent seems to be that the audio recording needs to be hidden. Holding up
a cameraphone in plain site isn't hidden.

~~~
TallGuyShort
You make an excellent point, but I don't think that's what's going on here.
This reminds me more of the ATM technician who overreacted to someone taking a
photograph with their phone of the machine being refilled. The man was
temporarily arrested and had his phone confiscated, and was treated very
rudely, when in actual fact, technical schematics are available online from
the ATM's manufacturer.

It's just people being power-hungry, that's all. I understand that police are
concerned about their own privacy and safety, but the major reasoning behind
much of the Bill of Rights was to prevent the police (and government in
general) from feeling comfortable stepping outside their bounds. People in
both situations claimed the cops were being overly violent - so what evidence
could anyone bring against the police now?

------
gills
I wonder whether police prefer this approach to accountability, or the Black
Panthers approach?

------
jamesbressi
Who watches the watchers? Checks and balances America, checks and balance.

"Boston police spokeswoman Elaine Driscoll rejected the notion that police are
abusing the law to block citizen oversight, saying the department trains
officers about the wiretap law. “If an individual is inappropriately
interfering with an arrest that could cause harm to an officer or another
individual, an officer’s primary responsibility is to ensure the safety of the
situation,’’ she said."

~~~
jamesbressi
Maybe my comment could have been written more clear. What I was portraying was
the quote from the Boston police spokeswoman's ridiculous comment in regards
to this situation--it was not relevant.

So my reply to her and the situation is "Who watches the watchers?" Meaning if
the police are there to watch over us, who watches over the police i.e.
"checks and balances"--a big ideal when our government was put together.

It is everyone's duty to perform and engage in checks and balance and I
believe it is especially your right to record both audio and visual when in
public domain.

Furthermore, they are bending this law... it was implemented as a "wiretap
law".

------
jamesbritt
Is there a market for a phone app that records video without audio? Cop-cam?
Or maybe phone video recorders need a special "free and open society" button
for this.

------
billswift
For lots of stupid arrests for photography, go to schneier.com/blog/ and
search for photography ; there was a real rash of them for several years a
while back.

For lots of Boston Police stupidity, go there and search on Boston Police.

------
radley
Does this mean red light cameras are illegal in Boston?

~~~
scdlbx
No, because red light cameras do not record audio.

------
olegk
Sue.

------
sker
When I was reading this I was wondering how is this Hacker News material. This
is the kind of thing I expect to find on the Reddit frontpage.

------
rapind
Everyone seems to be siding against the police here, but I for one agree that
recording people in public against their will should definitely be against the
law.

It's just a really creepy thing to do and disrespectful of your fellows.

Wouldn't a better approach be to actually confront the police once the arrest
has been made and let them know you saw the entire incident and considered it
excessive and will be making a report after gathering their badge numbers?
What are the chances that this video would only be used to file a complaint or
in court, rather than showing up out of context on youtube?

~~~
krakensden
What about things like the Oscar Grant case though?

~~~
tdoggette
[http://en.wikipedia.org/wiki/BART_Police_shooting_of_Oscar_G...](http://en.wikipedia.org/wiki/BART_Police_shooting_of_Oscar_Grant)

