Boston police fight back against cellphone recordings.

Jan 17, 2010

People recording what is going on around them is a relatively new development in North American history. One supposes that you could trace it back to the beating of Rodney King by officers of the Los Angeles Police Department in the year 1991, in which a bystander recorded the incident with a home video camera. Jump forward a dozen years; cellular phones and digital cameras now have the ability to do the same thing but are far smaller and record in much higher quality. With the proliferation of websites like Youtube and Facebook videos of every kind can be made available to the entire connected world within seconds. And this has the police scared.

In the year 2007, a lawyer named Simon Glik was walking through Boston, Massachusetts when he came across three cops trying to pry a plastic bag out of a teenager's mouth. Concerned, he pulled out his cellphone and began filming the arrest. About a year later Jon Surmacz thought that the BPD was probably being too rough in the breaking up of a holiday party he was attending and filmed it with his cellphone.

What these people have in common is that they were arrested for unlawful electronic surveillance. The BPD defends this by saying that police officers are obligated to protect themselves and the citizenry and may take whatever steps they deem necessary, and if that includes arresting bystanders whom they feel may be interfering with an arrest (even though they are standing on the other side of the street and using a cellular phone) they can. Apparently, they can do this because the state of Massachusetts (along with California, Connecticut, Florida, Illinois, Maryland, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington) are states in which all parties must explicitly give consent to being recorded (though if a party thinks you're kidding and gives consent anyway it probably still counts by the letter of the law), and the Boston police officers did not do so. Glik and Surmacz were able to get their charges dropped because the incidents took place in public in places in which there were no reasonable expectation of privacy and they used their cellphones openly. On other occasions, people have been arrested on charges of illegal wiretapping (which is an entirely different charge even though no communications were intercepted) and been convicted. Technicalities are rampant and being exploited to the utmost; one Jeffrey Manzelli of Cambridge recorded the MBTA Police at an anti-war rally and was convicted of a charge of illegal wiretapping in 2002 because the microphone he was using was up his sleeve even though the recording device itself was openly carried.

If such things trouble or concern you, I suggest that you do a little research on what is referred to as sousveillance. I think it'll be interesting to you if not enlightening.

(Obligatory disclaimer: I am not a lawyer; do not take any of this as legal advice; if you get in trouble it's not my fault.)