----- Original Message ----- From: "Mark Villaseñor" > Howdy Richard: > Irrespective your critique of my prose (so sorry I confused you, my bad), > I > respectfully disagree. Please bear with me while I explain..? > > 18 USC §2510 and related parts define what "wiretapping" is and is not, > and > Graber's actions do not appear to meet that criteria. Subsequent federal > law > also defines the common term, "Single Party Consent" in relation to > subject > matter; and, in Mapp vs. Ohio (1961) the U.S. Supreme Court ruled, in > part, > that states have no right to abuse the Fourth Amendment (even when a > Search > Warrant is otherwise lawfully granted) when other Constitutional elements > are in play (and they are here; Graber is a YouTube video blogger, which > is > also protected conduct as "PRESS" under the First Amendment). > > Graber had no obligation (whatsoever) to disclose whether or not he was > recording, both parties were in a public place not providing any > "expectation" of "privacy" as supported by relative case law. Moreover of > the thirty-eight (38) states and D.C. that have wiretap laws on the books, > few have sought to test issues beyond Constitutional limits (because most > fail miserably in the doing). > Well, I'm no lawyer .. but I do know that the law is (can be) different in various places unless superceded by federal law.
The following is a partial quote from a website I found: ======================= In Jean v. Massachusetts State Police, police officers conducted a warrantless search of Paul Pechonis's home. (1) Unbelmownst to them, the search was audiotaped and videotaped by a "nanny-cam." Pechonis later gave the recording to Mary Jean, who posted it on her Web site with commentary criticizing the local District Attorney. The officers claimed that Jean had violated state law by willfully disclosing the contents of a recording made without their prior consent. (2) They ordered Jean to remove the recording. (3) The district court granted Jean's request for preliminary injunctive relief and the First Circuit affirmed, concluding that the First Amendment likely protected Jean's disclosure of the recording. (4) However, the First Circuit implied that Pechonis had violated the Massachusetts recording law. (5) Massachusetts and at least twelve other states criminalize recording a communication without the knowledge or consent of all parties to the communication. (6) While some of these states' laws could be construed to exempt some recording of police, (7) others offer no textual basis for such an exemption. (8) Citizens in several states have been arrested, (9) and in some cases convicted, (10) for taping police conduct. This Comment argues that citizen tape recording provides a necessary check against police abuses of power and furthers privacy values underlying the Constitution and other laws. But police officers' interests in privacy and safety must be balanced as well. Therefore, states should permit citizens to record police officers in the line of duty without those officers' consent, as long as their recordings are made in a physically unintrusive manner and do not capture police communications that police could reasonably expect not to be recorded. I. THE STATUS OF STATE RECORDING LAWS Massachusetts and a number of other states prevent citizens from recording police officers' conversations, even within citizens' own homes. Massachusetts itself broadly prohibits the willful "secret[] record[ing]" of "any wire or oral communication" by any citizen without the consent of all parties to the communication. (11) Accordingly, Massachusetts's highest court has refused to exempt citizens who record police officers, even when the recording captures alleged police misconduct. (12) As the First Circuit recognized, the First Amendment protects individuals like Jean who distribute recordings of illegal police conduct. But it probably does not protect individuals like Pechonis who produce the recordings. In Bartnicki v. Vopper, the Supreme Court suggested that disclosure is protected when it constitutes "the publication of truthful information of public concern." (13) The Court explicitly declined, however, to protect "obtaining the relevant information unlawfully." (14) Furthermore, "[t]he First Amendment [does not become] a license ... to intrude by electronic means ... simply because the person subjected to the intrusion is reasonably suspected of committing a crime." (15) Thus, the Amendment does not excuse citizens from state liability for recording police, even where citizens allege police misconduct. ======================= I remember a case (which I could not find on-line just now) where a man recorded, with a visible audio cassette recorder, the police stopping him for something or other. As far as I remember he was later convicted of some sort of "wiretap" violation because he did not get the officers consent. This was in my state of Massachusetts. I don't necessarily agree with this law, but I would not have the funds to fight it should it be me who was accused. If this "helmet cam" incident happened in Massachusetts it would seem that it would be a violation. Richard Amirault N1JDU http://bostonfandom.org
