Later On

A blog written for those whose interests more or less match mine.

Steps toward a police state

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One important step is to prevent coverage of police actions, so that the police can operate with as little oversight as possible. Thus the increasingly strong movement to prevent recording or videotaping (e.g., with cellphones) police (public servants) as they do their work. Here are some recent stories on this wrong-headed movement:

Ray Sanchez has this story at ABC News:

Growing Number of Prosecutions for Videotaping the Police
Prosecutions Draw Attention to Influence of Witness Videos

That Anthony Graber broke the law in early March is indisputable. He raced his Honda motorcycle down Interstate 95 in Maryland at 80 mph, popping a wheelie, roaring past cars and swerving across traffic lanes.

Anthony Graber was arrested for posting a video of his traffic stop on YouTube.
But it wasn’t his daredevil stunt that has the 25-year-old staff sergeant for the Maryland Air National Guard facing the possibility of 16 years in prison. For that, he was issued a speeding ticket. It was the video that Graber posted on YouTube one week later — taken with his helmet camera — of a plainclothes state trooper cutting him off and drawing a gun during the traffic stop near Baltimore.

In early April, state police officers raided Graber’s parents’ home in Abingdon, Md. They confiscated his camera, computers and external hard drives. Graber was indicted for allegedly violating state wiretap laws by recording the trooper without his consent.

WATCH: Caught on Tape: Cop Punches Girl

WATCH: Should Cops Wear Body Cameras?

WATCH: Cop Cam

Arrests such as Graber’s are becoming more common along with the proliferation of portable video cameras and cell-phone recorders. Videos of alleged police misconduct have become hot items on the Internet. YouTube still features Graber’s encounter along with numerous other witness videos. "The message is clearly, ‘Don’t criticize the police,’" said David Rocah, an attorney for the American Civil Liberties Union of Maryland who is part of Graber’s defense team. "With these charges, anyone who would even think to record the police is now justifiably in fear that they will also be criminally charged."

Carlos Miller, a Miami journalist who runs the blog "Photography Is Not a Crime," said he has documented about 10 arrests since he started keeping track in 2007. Miller himself has been arrested twice for photographing the police. He won one case on appeal, he said, while the other was thrown out after the officer twice failed to appear in court.

"They’re just regular citizens with a cell-phone camera who happen to come upon a situation," Miller said. "If cops are doing their jobs, they shouldn’t worry."

The ACLU of Florida filed a First Amendment lawsuit last month on behalf of a model who was arrested February 2009 in Boynton Beach. Fla. Her crime: videotaping an encounter between police officers and her teenage son at a movie theater. Prosecutors refused to file charges against Sharron Tasha Ford and her son…

Continue reading. It’s a long story. I see no reason whatsoever to forbid taping police as they do their work. Indeed, I think it’s a great idea that should be encouraged. The police are public servants, and the public is well-served by seeing how they operate. I also believe that city council meetings should be videotaped and broadcast, and that trials should be videotaped and broadcast. Why not?

Carlos Miller, mentioned in the story, blogs about this issue. Here’s a sample post:

ABC News is the latest national mainstream media news organization to address the growing epidemic of cops using wiretapping charges to arrest people videotaping them.

And as in the previous cases, Photography is Not a Crime gets a link, a mention and I even get a quote in.

In the last few weeks, USA Today, The Washington Post (article and editorial) and NPR’s Talk of the Nation have addressed the issue.

Also on a more local level, the Pittsburgh Post-Gazette reported last week that the Allegheny County district attorney’s office settled a federal lawsuit by agreeing to redistribute a memo to police departments explaining that it is not against the law to videotape a cops on duty.

Unfortunately, memos don’t seem to make a difference because an Oregon police chief who received a similar memo from the city attorney vowed that these arrests would continue.

All this media coverage was probably what prompted U.S. Congressman Ed Towns last week to introduce a resolution to protect citizens against these arrests.

From what I’ve learned, a resolution is merely a ceremonial gesture that doesn’t carry much legislative weight.

But nothing happens overnight in Congress. The fact that a Congressman even made the effort to address the issue is a move in the right direction.

However, now it’s up to us to keep the momentum going by reaching out to the rest of Congress.

The first step is to create a national database of where these incidents have taken place.

Radley Balko, senior editor of Reason Magazine, suggested we create a map as he did when we worked at the Cato Institute to address the epidemic of botched police raids.

The question is, should we just limit the map to where people have been charged with wiretapping charges for videotaping cops or should we include all photography harassment, including at the hands of security guards?

I prefer the latter, only because it will really demonstrate that this is a regular occurrence.

Let me know what you think and what we can do to get more Congressional attention.

Finally, see Bruce Schneier’s post on this issue:

In at least three U.S. states, it is illegal to film an active duty policeman:

The legal justification for arresting the "shooter" rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where "no expectation of privacy exists" (Illinois does not) but in practice this exception is not being recognized.

Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law — requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."

The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler’s license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.

This is a horrible idea, and will make us all less secure. I wrote in 2008:

You cannot evaluate the value of privacy and disclosure unless you account for the relative power levels of the discloser and the disclosee.

If I disclose information to you, your power with respect to me increases. One way to address this power imbalance is for you to similarly disclose information to me. We both have less privacy, but the balance of power is maintained. But this mechanism fails utterly if you and I have different power levels to begin with.

An example will make this clearer. You’re stopped by a police officer, who demands to see identification. Divulging your identity will give the officer enormous power over you: He or she can search police databases using the information on your ID; he or she can create a police record attached to your name; he or she can put you on this or that secret terrorist watch list. Asking to see the officer’s ID in return gives you no comparable power over him or her. The power imbalance is too great, and mutual disclosure does not make it OK.

You can think of your existing power as the exponent in an equation that determines the value, to you, of more information. The more power you have, the more additional power you derive from the new data.

Another example: When your doctor says "take off your clothes," it makes no sense for you to say, "You first, doc." The two of you are not engaging in an interaction of equals.

This is the principle that should guide decision-makers when they consider installing surveillance cameras or launching data-mining programs. It’s not enough to open the efforts to public scrutiny. All aspects of government work best when the relative power between the governors and the governed remains as small as possible — when liberty is high and control is low. Forced openness in government reduces the relative power differential between the two, and is generally good. Forced openness in laypeople increases the relative power, and is generally bad.

EDITED TO ADD (7/13): Another article. One jurisdiction in Pennsylvania has explicitly ruled the opposite: that it’s legal to record police officers no matter what.

Written by Leisureguy

21 July 2010 at 11:33 am

Posted in Daily life, Government, Law

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