Who Will Watch the Watchers?

The Bad Lawyer has been lobbied for some time by friends, locally, and through the social network where his "blawg" ramblings are occasionally cross-posted to examine at the question of the prosecutions of citizens under state and local laws prohibiting citizens from recording law enforcement in the performance of their duties.  Thus, if such laws had been on the books in California in 1991 it would have been a prosecutable crime to record the Rodney King beating.  Which is probably the point of these laws.

This seems almost too stupid to be believed, that our law givers, law makers, legislators would believe that there is any rational basis to enact laws vis-a-vis the people criminalizing the audio or video recording of law enforcement.  Our public servants:  law makers, (paid by us), wrote laws to enforce as crimes, the activities of our other public servants, (paid by us)--and, they really think this is a good idea, reasonable, intelligent, legal? 

The great crime reporter Peter Herman at the Baltimore Sun has excellent coverage of the debate:

"Citing a 2,000-year-old Roman quote, ;Who will watch the watchers?' a Harford County judge skeptically questioned prosecutors Friday pressing criminal charges against a motorcyclist for recording his traffic stop and posting the video on the Internet.

Circuit Judge Emory A. Plitt Jr. said he would issue a written ruling shortly as to whether the case against Anthony Graber can proceed to trial Oct. 12, but he acknowledged that appeals courts have not ruled on the issue and that 'we are on unplowed ground.'  The judge referenced the videotaped beating of Rodney King in Los Angeles, the proliferation of surveillance cameras and the ease with which virtually anybody can quickly snap pictures and record events and self-publish with a click of a button.

Harford County State's Attorney Joseph I. Cassilly has already gone on a radio station to debate the merits of the case with an attorney from the American Civil Liberties Union, which brought a team of high-powered lawyers to court on Friday. Among them was Joshua R. Treem, a former federal prosecutor who represented one of the D.C. snipers and currently represents a Baltimore city councilwoman under indictment.

The conflict arises from a March 5 stop by a plainclothes state trooper who pulled Graber over after watching him speed through traffic topping 100 mph and pass several cars on one wheel with his motorcycle. Graber had been wearing a camera attached to his helmet to record his ride.

Trooper J.D. Uhler jumped out of his unmarked car with his gun in his hand, but did not point it at Graber, as he ordered him to dismount, and he issued several citations.  Five days later, after seeing the encounter —video and audio — posted on YouTube, state police obtained a search warrant and raided Graber's house. They seized his cameras and computers, and prosecutors later obtained a grand jury indictment charging the 24-year-old Maryland Air National Guard staff sergeant with violating the state's wiretapping laws. He faces up to 16 years in prison and the loss of his engineering job if convicted of a felony.

Maryland law says that a person may not  'willfully intercept … oral communications' without consent. It defines 'oral communications' as 'any conversation or words spoken to or by a person in private conversation.'

The question before Plitt is whether a conversation between a police officer and a person he stops on the side of the road is private. Maryland's attorney general issued an opinion in July advising police agencies that people have a right to record officers and that most interactions between the police and the public can not be considered private.

Treem argued that the indictment violates Graber's constitutional right to free speech, and he said it's perfectly legal to capture audio recordings in places where people have no expectation of privacy. He said Uhler made a traffic stop   'in a public place on a public highway. The police officer was doing his public job.'  Assistant State's Attorney David W. Ryden countered that 'just because you are in a public place doesn't mean your speech is public.'  He noted that police officers should be able to talk to witnesses, even on a public street, without fear that the conversation will be recorded by a bystander.

Ryden said he should be able to have a 'whispered chat' with his co-counsel on a park bench outside the courtroom without fear, but Plitt quickly told him the analogy wasn't credible because the issue with Graber involves an officer conducting official business.  The judge noted that the trooper could use any part of the conversation with Graber in court, hardly making the discussion private. 'The only difference here is the camera," Plitt said. When the prosecutor said police may be concerned, Plitt shot back,  'What difference does it make what the police think?'

Another assistant state's attorney, Scott H. Lewis, argued that many police officers in Maryland have cameras mounted in their dashboards and that the law requires them to notify drivers that they are being recorded on traffic stops.

That provision is there, Lewis said, because the law recognizes the back-and-forth between officer and driver 'as a private conversation.'  The same rules, he said, should apply to citizens who want to record police. But Treem said the law requires officers only to inform the motorist of the camera and that the recording can continue even without the driver's consent. The judge agreed, noting the police now 'have it two ways' — requiring consent to tape officers but not requiring consent for officers to tape citizens.

Plitt also agreed with Treem, who said prosecutors' use of the word 'devices' to describe the cameras they seized was insufficient to distinguish between 'a bug,' which he said the wiretapping law was designed to address, and a cell phone camera that has multiple uses and is not specifically designed for 'surreptitious recording.'  After Treem complained about the vague references to technology in the indictment and search warrant — prosecutors used the word 'devices' — Plitt interrupted, 'You mean like not recognizing YouTube at all?' At another point, the judge reached into his own pocket, pulled out his cell phone and held it up to demonstrate how easy it is to be a videographer. 'Thirty seconds, audio and video,' the judge said.

[The Judge]  then recited the quote, which he said he found in a 1972 Maryland Court of Appeals case on whether the state could send people to psychiatric wards."
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Here's the thing, Baltimore, Chicago, Detroit, many urban settings around the nation suffer from wide-spread witness intimidation.  Crime in these cities is out of control, I can actually envision a rational basis for limited constraint of audio and video recording--in fact, I totally understand how it is that a Judge might jail a courtroom spectator seen pointing a smart phone or recording device at a witness or juror as we have seen on Bad Lawyer in the last year. 

I can not understand how consistent with the First Amendment, these Maryland and similar state statutes withstand constitutional scrutiny.  A video post on YouTube is expression, these laws are "prior restraint."  How the hell, did someone paid by the taxpayers ever think there was wisdom under our constitutional form of government to green light this sort of approach?

Remember Tiananmen Square, 1989?  That is at bottom what this debate is all about!