The Wiretap law in Maryland exists to protect society’s right to privacy by protecting conversations we engage in, thinking that we know who can hear us. All laws, however worded, carry with them the potential to be misused, to criminalize activity unintended by the legislators. The Maryland Wiretap law has been the focus of media attention recently because of efforts of police officers to use the Wiretap law to criminalize videotaping police interactions. This is an inappropriate application of the current law that does nothing to further the public policy interest in privacy. Furthermore, such an application of the Maryland Wiretap law goes against the interest society has in being able to supervise the police.

I will analyze the Maryland Wiretap law under which individuals have been prosecuted for using camcorders to record police officers while the officers are on duty and in public. Then I will set out a public policy argument that society has an interest in being able to record police interactions. Police officers have an enormous amount of state-sanctioned power, and the possibility of their misuse of it is troubling. No current law prohibits an individual from recording a police encounter,  because  public policy supports an individual’s right to record a police encounter – whether the individual’s own encounter or a third-party’s encounter with the police.

            On March 15 of this year, Anthony Graber, a staff sergeant in the Maryland Air National Guard and a computer systems engineer and married father of two, was riding his motorcycle on I-95 when he was confronted by a plainclothes Maryland State Police trooper as he came to stop at an exit. Graber had a video camera prominently mounted on his helmet to record his ride, and the camera recorded the officer’s actions and statements at the outset of the encounter, which ended with Graber receiving a ticket for speeding. Five days later, Graber posted the video to YouTube[1] showing the encounter, in which the state trooper leaps out of his unmarked vehicle, not in uniform, and with his gun drawn, yelling at Graber for several seconds to get off of his motorcycle before identifying himself as a police officer. On March 15, the trooper became aware of the video, and obtained an arrest warrant charging Graber with a violation of the state wiretap law.[2] Based on the wiretap charges, the State Police obtained a search warrant authorizing them to seize all of the Graber family’s computers and hard drives, along with Graber’s video camera. Several weeks later, the Harford County State’s Attorney obtained a grand jury indictment adding several additional motor vehicle charges, and additional wiretap violations, including one alleging possession of “a device… primarily useful for the purpose of surreptitious interception of oral communications,” referring to the widely sold and clearly noticeable GoPro video camera that had been mounted on Graber’s motorcycle helmet.[3]

            Anthony Graber’s story is not a unique or rare occurrence. While it would be an exaggeration to say that it occurs on an almost daily basis, situations like this still come up alarmingly often. This incident occurred in Maryland, but the same thing happens in numerous other States.  In Massachusetts, for example, the police force often uses the Massachusetts Wiretap Law to prosecute people videotaping law enforcement encounters. Even when such laws are not available to law enforcement, many police officers who do not want to be videotaped demand that individuals not do so. Photojournalist and law student Carlos Miller runs a blog, “Photography is Not a Crime[4],” which he started when he was improperly arrested and beaten by police for videotaping and photographing officers in Miami, Florida.[5]  The blog tries to publicize the negative view most police officers have of being photographed or video recorded and the improper way in which many officers react to being recorded. Just the front page of his site lists ten occurrences; the list includes incidents in New Jersey, California, Florida, Arizona, Virginia and Hawaii. The New Jersey incident included a police officer who threatened to damage the recording camera and jail the citizen who was doing the recording.[6] During the Florida incident, a bystander was recording a police officer arresting somebody for drug charges and when the officer noticed the recording, he demanded the tape. When the recording individual refused, he was arrested.[7]  In the California incident, the police officers who were being recorded assaulted the videographer.[8]

             Not all police officers view video recordings as a threat. Many police departments have discovered the utility of video recordings – in the context of traffic stops, interrogations and confessions.  An individual’s ability and right to videotape law enforcement personnel is not only protected but is also a valuable and important tool in keeping those charged with enforcing our laws behaving properly. The history underlying the Maryland Wiretap law, as well as recent decisions regarding the law, are consistent with an understanding that the law only applies where there is a reasonable expectation of privacy by the parties whose conversation is being recorded. While there have not been any judicial decisions regarding the privacy status of a traffic stop in Maryland, there are numerous cases outside of Maryland[9] that lead to the conclusion that there is no reasonable expectation of privacy during a traffic stop. Finally, there are excellent reasons to allow citizens to record police officer interactions, for First Amendment reasons as well as to police the police. The first question to address   in determining whether the Maryland Wiretap law is being applied in a manner that accords with the Maryland and Federal legislative intent is whether the First Amendment applies to protect those who record their encounters with the police. . The next question is whether video recordings have helpful in terms of policing the constitutionally recognized obligations of law enforcement officials. The final question is whether this is a situation that should warrant allowing private individuals to take the part of policing law enforcement.

            The Maryland Wiretap law[10] was enacted in 1973 and was based in large part on the federal wiretapping and electronic surveillance law from the Omnibus Crime Control and Safe Streets Act of 1968.[11] The Act generally limits various forms of eavesdropping. Except as specifically authorized in the statute, an individual may not “willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral or electronic communications.”[12] In addition, it is unlawful to willfully use or disclose the contents of a communication obtained in violation of the Wiretap Act.[13] The definitions of the key terms are crucial to understanding the Act. The term “intercept” is defined as “the aural or other acquisition of the contents of any wire, oral or electronic communication through the use of any electronic, mechanical, or other device.“[14] Thus, video recording alone, without the capture of an audio communication, is not regulated by the Wiretap Act.[15] The statute defines “oral communication” as “any conversation or words spoken to or by a person in private conversation.“[16] The Maryland Wiretap law lists several exceptions to the prohibition; one of these exceptions is a police officer who records a vehicle stop.[17]The vehicle stop exception came about because in 1990, when the police department started videotaping traffic stops, there was concern that a conversation between a police officer and a motorist during a traffic stop might be considered private, and covered by the Act. As a result of this concern, The Department of Public Safety and Correctional Services proposed legislation to specifically authorize the interception by police of conversations during traffic stops, which was adopted, with minor amendments, by the General Assembly in 1992. That provision allows a law enforcement officer to intercept an oral communication as part of a video recording of the traffic stop, if the following conditions are met: (1) the officer is a party to the communication; (2) the officer has been identified as a law enforcement officer to the other parties; and (3) the law enforcement officer informs the other parties to the communication.[18]

            Based on the fact that the Maryland legislature decided an exception to the Maryland Wiretap law was necessary for traffic stops, it appears that the premise of the 1992 legislation was that a conversation between the police officer and the motorist during a traffic stop is a “private conversation.” Such a conclusion would suggest that there is a reasonable expectation of privacy between the police officer and the stopped motorist, and that would weaken an argument for allowing the recording of police officers, since the Wiretap law prohibits recordings of private conversations. However, in 2000, the Chief of Police for Montgomery County asked the Attorney General for an advisory opinion as to whether a police officer who inadvertently records a traffic stop without meeting the three requirements in the traffic stop exception[19] violates the Wiretap Act. While a large part of the opinion is based upon the inadvertantness of the recording, part of the Attorney General’s answer was: “It is also notable that many encounters between uniformed police officers and citizens could hardly be characterized as ‘private conversations.’”[20] Furthermore, there have been cases in other states determining that conversations in public locations — even when involving police encounters — are not considered private. These cases will be briefly reviewed below. The black letter law is straightforward but minimal; therefore, we will look further into the legislative history to determine how broadly the statute should be construed.

            While there is little legislative history available, the legislative intent behind the act is straightforward. The differences between Maryland’s law and the federal statute are few and clear. The federal statute was originally passed to clarify the permissibility of the use of wiretaps in regards to a recorded conversations’ admissibility in court, and the exceptions to the statute were focused on granting law enforcement the right to use wiretaps in the course of their investigations[21]. The Maryland law was similarly conceived.

One clue as to the intent of the Maryland legislature in passing the wiretap law is provided by Congress’s decision to modify a similar provision within the federal Wiretap law. Brooke E. Carey discusses the significance of the statutory term “willfully” in the federal statute.[22] While the Maryland statute uses the word “willfully” based upon the original language of the federal law, the revised, post-1986 federal law replaced “willfully” with “intentionally.” The Maryland Court of Appeals defined “willfully” in the MD wiretap law as “intentionally-purposefully,” which is to say an individual has only to know that he or she is recording audio and need not know whether or not the act is illegal which mirrors the post-1968 use of “intentionally” in the federal law. All this supports the conclusion that the MD legislative intent is the same as the federal legislative intent.

The federal Wiretap law was included in the Omnibus Crime Control and Safe Streets Act of 1968 in order to respond to the U.S. Supreme Court’s decisions Berger v. New York[23] and Katz v. United States.[24] Berger v. NY is the case that defines the constitutional requirements in obtaining a wiretap warrant be governed by the Fourth Amendment. In Katz v. US the Supreme Court ruled that government “activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”[25] The United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, commonly referred to as the Church Committee, described those Supreme Court cases as holding “that the Fourth Amendment did apply to searches and seizures of conversations and protected all conversations of an individual as to which he had a reasonable expectation of privacy”.[26] The federal Wiretap law[27] was created to conform to the Supreme Court’s holdings that electronic surveillance is subject to fourth amendment constitutional strictures.[28]

Even with this basic understanding of the legislative intent behind the law, we are left at a sort of crossroads. In July of 2010, Attorney General Gansler was asked about the application of the Maryland Wiretap law to situations in which citizens record public activities of police officers. As Attorney General Gansler’s letter stated, there have been no cases before the Court of Appeals to help give direction to the question of whether a police officer has a reasonable expectation of privacy while on duty and acting in the course of his or her duty. Several articles have been written that touch on this question, and Attorney General Gansler stated that police officers should not be regarded as having a reasonable expectation of privacy while on duty. However, as Attorney General Gansler points out, without any decisions by the Court of Appeals, there is room for the law to be interpreted to grant police officers’ conversations while in the course of their duty the expectation of privacy.

The question to Attorney General Gansler is based on the tension between the interest of officer safety and the interest of monitoring police activity. One important method for maintaining officer safety is for the officer to remain in control of the situation; very often actions that are reasonable and necessary to control a situation can be seen as unreasonable out of the context of the interaction. A concern voiced by the law enforcement community is that if civilians are permitted to record police who are on duty, and the officers know that their actions can come under public scrutiny later, they might not be willing to do what is necessary to control the situation. Such a hypothetical concern must be balanced against the possibility for police misconduct and the deterrent effect that allowing recordings would have on potential offenders.       

Attorney General Gansler lays out three possible alternatives should this question go to the Court of Appeals in Maryland. The first possibility is that the court could find that conversations between police officers and individuals during a police encounter are considered a private conversation. This is the alternative that the prosecutors and officers who charge people like Anthony Graber would prefer.  Despite this view by police, Attorney General Gansler opines that there is very little chance of the Court of Appeals adopting this approach, noting that no State has ever held this way in a similar case. There have been numerous cases that determined that conversations that took place in public locations or in the presence of third parties were not considered private.[29]  Furthermore, in light of the interest in officer safety, an on-duty officer’s “expectation of privacy” seems more like an “expectation of control.” While such an expectation has value from an officer safety perspective, it would be a convoluted reading of the Maryland Wiretap law. The Wiretap law focuses on privacy and not the concerns of officer safety.

The second alternative also moves away from the language of the statute, specifically the language indicating that only “private” conversations are protected, and suggests that the Wiretap Law should apply if the individual surreptitiously records the conversation during the encounter, no matter whether the parties to the conversation have a reasonable expectation of privacy or not. This is consistent with the decision of the Massachusetts court in Commonwealth v. Hyde[30]. In Hyde, since the Massachusetts statute specifically prohibits the act of “secretly” hearing or recording the contents of an oral communication, without specifying whether the oral communication must be private, the Court held that an individual who surreptitiously recorded his conversation with the police during an encounter was violating Massachusetts’s Wiretap law.[31]  It is very unlikely that the MD Court of Appeals would reach a conclusion similar to that of the Massachusetts court in Hyde, in light of the fact that the Massachusetts statute does not include a “private conversation” element, whereas the Maryland statute explicitly prohibits the recording of “private conversations.”[32]

The final possibility is that the court could determine that communication during a traffic stop is not considered a “private conversation” and is not a protected communication under the Maryland Wiretap Law.

            On September 27th, Judge Emory Plitt in the Circuit Court for Harford County dismissed the Wiretap charges against Anthony Graber. Judge Plitt stated that law enforcement officers do not have a reasonable expectation of privacy during encounters with citizens while in public places. He based his decision on the “overwhelming weight of authority from other courts.“[33] Judge Plitt then went on to cite over twelve cases which imply that police officers do not have a reasonable expectation of privacy during encounters with citizens in public places.

            The first case Judge Plitt cited is State v. Clark[34]. In Clark the Washington court held that a conversation on a public road in the presence of a third party and within sight and hearing of a passerby is not private. The next case cited is State v. Smith[35] in which the Louisiana court found that a prosecutor and a witness who were speaking loudly enough to be heard through a closed door did not have a reasonable expectation of privacy. Next, in Kee v. City of Rowlett,[36] the Fifth Circuit court held that there could be no reasonable expectation of privacy in conversations that took place in an outdoor, publicly available space. Then, in Lewis v. State,[37] the Washington court held that there can be no reasonable expectation of privacy in traffic stops. In Johnson v. Hawe[38] the Ninth Circuit court held that there was no violation of state privacy statutes by tape recording a law enforcement officer in the performance of his duties on a public street. Finally, in People v. Beardsley,[39] the Illinois court held that conversations that take place in a police car are not private conversations.

            Judge Plitt then went on to cite Maryland appellate cases that touch on the expectation of privacy in general. In McCray v. State[40] and Stone v. State[41] the court held that there was no expectation of privacy on a public street. The facts of McCray involved police surveillance, via videotape, of McCray while he was walking from his home to the MVA across the street. The surveillance was conducted without a court order or search warrant. The court in McCray held that the videotape did not require court order or warrant, since it was a public location.[42] In Stone, the police tracked the defendant’s car via a cell phone hidden within a chloroform container. The court held that since there is no right to privacy on the public streets, the cell phone was only used to detect information that would have been available even without the phone, and therefore did not violate the 4^th Amendment.[43] In Fowler v. State[44] the court held that there was no expectation of privacy when the police were able to see bloodstains inside the defendant’s car from the street, despite not having a search warrant.[45]

            Judge Plitt sums up the case by stating, “The encounter in this case took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch, conclude that the Troopers had any reasonable expectation of privacy in their conversation with the Defendant which society would be prepared to recognize as reasonable.“[46] Since the federal Wiretap law that the Maryland Wiretap law is modeled after was prompted by Fourth Amendment cases concerning the admissibility of electronically recorded conversations, and the prosecutions of individuals for recording police officers are based upon the Maryland Wiretap law, the same doctrine of “reasonable expectation of privacy” must apply equally to both situations.

            Judge Plitt quoted and referred to Attorney General Gansler’s letter throughout his opinion. Despite the decision, this case does not end the matter, since this is merely a state circuit court opinion, it is not binding precedent; it is also unlikely that the State will appeal the dismissal since that would risk the creation of binding precedent. This leaves open the possibility that a case like this one can be raised again at a later time and that court could still possibly rule that police officers have a reasonable expectation of privacy while on duty, in public.

            Even if this possibility seems unlikely, the Maryland legislature could always change the language of the Wiretap Law to follow the Massachusetts statute that does not require the conversations to be private. Alternatively, the legislature could decide to pass an explicit exception to the privacy requirement in regards to police officers. For these reasons, I explore an important public policy argument as to why video recording of police officers’ encounters with individuals should be allowed and encouraged.

            The public policy that is currently served by the Maryland Wiretap law would be equally served by allowing video recordings of public police interactions. The Maryland Wiretap law was intended to maintain an individual’s right to privacy while still allowing the police to make use of wiretaps in a crime fighting capacity. The statute does this by prohibiting people from listening in on private conversations and prohibiting the use of products that are meant to intercept private communications.[47] The exceptions that were codified in the Act merely carve out small, permissive niches, such as allowing police officers to use wiretapping equipment in the course of their investigations. The Attorney General’s advisory opinion in response to the Montgomery County police department’s initiative in installing audio/visual recording equipment in their patrol cars took the position that only inadvertent interception of private communication would be justified. Since the underlying purpose of the law is to protect privacy and prevent crime, allowing citizens to record public interactions with police for the purpose of preventing misconduct would fall well within the public policy of the Maryland Wiretap law and is actually a natural and logical outgrowth of it. 

            Let us revisit the case against Anthony Graber; the counts against him (including the three felonies under the Wiretap law) carried a maximum penalty of 16 years in prison. Aside from the patent absurdity of the claims against him, the vastly overbroad attack against an otherwise law-abiding citizen, the invasion of privacy and the cost to the Md. taxpayers and the court system, this is also a situation that sets a dangerous precedent. Using the Maryland Wiretap law to prosecute citizens who have done nothing other than to leave a video camera running is an abuse of the State’s power. It also has a chilling effect on other people who might otherwise be willing to watch out for police misconduct.

An additional argument in favor of recording police interactions touches on the First Amendment. Video recordings of police encounters exist in a grey area of protected speech; it is not immediately clear whether such activities should be protected under the First Amendment. The first issue is whether videotaping of public events is protected under the First Amendment. Many courts have ruled that it is. Although Judge Plitt neatly sidesteps the issue by interpreting the statue to require that the conversation be private, he does conduct a First Amendment analysis in regards to the Transportation Law offense, count seven of the charging document. The seventh count that Anthony Graber was charged with alleges that he drove recklessly, with the intent to video record the reckless driving.[48] The specific statute in play provides that: “A person may not commit or engage another person to commit a violation [of the vehicle law punishable by imprisonment or reckless driving] for the purpose of filming, video taping, photographing, or otherwise recording the violation.…“[49] Judge Plitt cites Pendergast v. State[50] which requires that any criminal statute which implicates the free speech protections of the First Amendment be narrowly construed. He also cites Iacobucci v. Boulter[51] where the court held that a video recording of a conversation within a town hallway was protected and Forydyce v. Seattle[52] where the court held that the right to record a protest march was protected. Those cases are similar to count seven against Anthony Graber in that the statute attempts to make criminal a protected activity; for this same reason, Judge Plitt strikes down the current version of Maryland Transportation 21–1126.

            Although Judge Plitt does not question the constitutionality of the Wiretap law as applied to prohibit the video recording of a public police encounter, there is ample precedent to suggest that such an application would be unconstitutional. The only reason that the video recording in this situation might be different from those other public video recording cases, where First Amendment protection was found, is that this involves police officer interactions with individuals. They are encounters in public. They are encounters that should be defined as public interactions with no reasonable expectation of privacy.  The fact that they are recordings of police officers in the course of their duties should not substantively change the nature of the act of video recording in public.

            An article in the Yale Law Journal by Dina Mishra, “Undermining Excessive Privacy for Police: Citizen Tape Recording to Check Police Powers,”[53] explores this topic in light of a case under the Massachusetts Wiretap statute. Ms. Mishra points out that the First Circuit recognized that the First Amendment protects citizens who distribute recordings of illegal police conduct, but probably does not protect the producer of such a recording.[54]  The reasoning behind this conclusion rests on the Supreme Court’s decision in Bartnicki v. Vopper,[55] where the court implied that disclosure is protected when it constitutes “the publication of truthful information of public concern.“[56] The Court was not willing to protect “obtaining the relevant information unlawfully.”[57] What that means, practically, is that the First Amendment does not protect an individual from state liability for recording police, even when the citizen alleges police misconduct. While this may weaken our supposition that the video recording of police encounters is protected by the First Amendment, that will only be a concern if the Maryland Wiretap law applies to public police encounters.

            The next aspect of the public policy argument for allowing individuals to record police encounters comes into play when trying to determine whether video recordings of police encounters have special constitutional significance.–An important question is how helpful are video recordings in terms of policing the police? If the recordings do play an important role in supervising police activity, then they can be considered material of public concern. The Supreme Court does acknowledge the First Amendment protection of the disclosure of material that is of public concern.  Police agencies in numerous states have been using video recordings during interrogations for a while. Nearly every state has jurisdictions with police departments that regularly record custodial interrogations. The benefits of having audio or — even better — audiovisual recordings should be obvious, but in the Report of the Supreme Court Special Committee on Recordation of Custodial Interrogations, a Chief of Violent Crimes Unit in Minnesota states that, although he was a critic of mandatory recordations, he is now a proponent of them and lists why that is so. The first benefit the police chief mentions is that the tapes tended to eliminate fights over the voluntariness of a defendant’s statement and the waiver of Miranda warnings; they provide conclusive proof that the Miranda warnings were read and waived. The second benefit is that the tapes tended to resolve fights over what the defendant actually said or meant in his statement… The sixth benefit listed is that juries were generally willing to accept necessary interrogation tactics such as the good cop-bad cop approach or appropriate trickery or deceit, necessary to conduct a probing inquiry of the defendant…

            The first recommendation that the Committee offered is that the Supreme Court should exercise its supervisory authority over the administration of criminal justice to encourage electronic recordations of custodial interrogations. Among the various reasons for this is the fact that recordation can eliminate the risk of impermissible interrogation practices and can protect and enhance the police officers’ credibility and protect against complaints of police misconduct.

All of Maryland’s police departments regularly record interrogations, as required by the Maryland Code of Criminal Procedure. The statute states that the department shall make “reasonable effort… whenever possible.“[58] Other states have proposed and several have passed statutes mandating recordation of custodial interrogation.[59]Alaska requires recordation when a custodial interrogation occurs in a place of detention.[60] Minnesota requires recordation when questioning occurs in a place of detention but also includes recordation of interrogation outside of a place of detention if feasible.[61] Texas requires recordation of statements of an accused made as a result of custodial interrogation.[62] Illinois requires recordation of statements made by an accused in homicides as a result of a custodial interrogation at a police station or other place of detention.[63] Maine requires recording of law enforcement interviews of suspects in serious crimes.[64]

            It is clear from the policy in numerous police departments, as well as the recommendations of the Cooke Report, that there is an overwhelming public benefit that video recording provides in situations where there is a possibility of miscommunications, difference of opinion as to recollection of events, and the possibility of actual or falsely alleged police misconduct. Transferring the currently acknowledged benefits and acceptance of recording custodial interrogations to recording police encounters should take minimal effort. Police departments in many states, Maryland included, have already implemented a police cruiser dashboard camera system.[65]

            It is important that, until now, all formally recognized recording is recording that is done by the police. There are concerns that if the footage stays in police control the benefits of recording could be diminished. If the police officer is engaging in misconduct, it would be easy to turn off a recording device, or tamper with the footage after the fact. A dissenting Justice, Lee Ann Dauphinot, in the  Texas Court of Appeals opinion Williams v. Texas states, “An appellate court should give no weight to testimony that is disproved by the objective record of the actual events… the majority should address the issue of an officer’s intentionally disabling the audio recorder and testifying directly contrary to the audio record.”[66]

            Justice Dauphinot goes on to question the lack of action regarding the “[R]epeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment….”[67]

There are numerous occasions when police encounters — both with and without alleged police misconduct — were supposed to have been recorded, but the recordings went missing. Radley Balko of Reason Magazine has reported that 1,300 dashboard camera videos in the Nashville police department were erased. The police department blamed the video camera vendor. The vendor blamed the police department. More disturbing, some DUI defense attorneys who had sought video of their clients’ arrests were told by the police that the video did not exist, not that they had been erased.[68]

             A pregnant illegal immigrant, who was arrested two years ago for a minor traffic violation, was jailed and forced to give birth while shackled. The officer who made the arrest claimed that there was no video of the incident, but the woman’s lawyers were able to obtain the video (this past year), although portions were missing. The video opens with the officer telling the woman that the camera is on.[69]

            In Birmingham last year, police officers beat an unconscious individual after he crashed as a result of a high-speed chase. The dashboard camera was turned off mid-beating, and the police department gave the district attorney’s office a version of the video with the beating edited out.[70]

            Footage of the beating of the University of Maryland student, Jack McKenna, after a basketball game last year was mysteriously missing from the footage taken by the police surveillance camera pointed at the spot where the beating took place. The police officer in charge of the campus surveillance system is married to one of the officers who was disciplined in the McKenna case.[71]

            In 2005, a reporter in Prince George’s county claimed she was abused during an encounter with police when she and a cameraman were pulled over by seven police cruisers. Prince George’s county officials never gave her attorneys the dashboard camera footage of the incident; the excuse given was that all seven cameras were malfunctioning at the time.[72]

            Each of these anecdotes merely serves to underline the point that there is an inherent imbalance when only one party in a police encounter is permitted to record the encounter and that there is definitive benefit in allowing individuals as well as police officers to record police encounters.

            Recently, legislation has been proposed that would amend the Maryland wiretap law to explicitly allow citizens to video record police officers who are on duty and in public. This legislation is in response to the various detentions of Maryland citizens who were recording police officers in public.[73] While this is an excellent start, the proposed amendment does not go far enough. There is a proposed bill in Connecticut that authorizes a civil action for damages against officers who have interfered with a person’s right to record. [74] Maryland’s proposed amendment needs a provision like Connecticut’s; without civil liability, there is still little to deter a police officer who is so inclined from ignoring an individual’s right to record the encounter. Since a substantial part of the importance of allowing a citizen to record police interactions is an effort to mitigate potential police misconduct, that interest would be well served by backing up the individual’s right with civil penalties should a potential police malefactor try to interfere.

            Another concern with Maryland’s proposed bill[75] is that it is to be an exception to the currently existing Maryland Wiretap law.[76] As has been established earlier,[77] the underlying intent of the Maryland and Federal Wiretap laws are to offer Fourth Amendment rights to conversations in private. Allowing citizens to record police officers in public is a completely different issue, and one that would be better suited to its own law.

            Judge Plitt’s “Final Observation” is both succinct and extremely enlightening: “Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in a public fora, we should not expect our actions to be shielded from public observation. ‘Sed quis custodiet ipsos custodes.’”[78]

Scott Greenfield at Simple Justice adds to an ongoing discussion regarding transparency in the criminal justice system.
The originating post came from Doug Berman who suggested the idea there should be registration for all convictions in the criminal justice system.
The next sally came from Bobby Frederick who raises the very valid concerns of mistakes and poor representation.

Scott followed up by bringing to light the concern of people who have been through the criminal justice system and come out the other side. These people who have paid the debt that they accrued should be left with a clean slate without another obstacle in the way of their rehabilitation. As is often the case, I found myself agreeing with him.
I felt like I had to add my 2¢ to this discussion since earlier this month I finally met the client whose appeal I helped write the brief for. The client was convicted and found guilty by the jury. I met him and his wife at the oral argument. (I was there to listen, not to argue — indeed there would have been serious issues had I argued.) The client’s wife mentioned that he was having a horrible time finding a job as a result of his felony. I should make clear that his actions were neither violent nor dangerous and he was not even criminally negligent. It was one of those many statutory offenses that most people would never imagine ever coming up in reality. However, he was found guilty of it and that has killed his chances to earn a living.
Doug’s suggested registration incorporates information regarding what the conviction was for, but to most people the conviction itself is enough of a reason to shun them. Why give the masses another reminder?

On an unrelated topic, I have no idea what the title of this post means, but it sounded sufficiently dramatic. So, there you go.

I finally got around to actually reading the decision in State of Wisconsin v. Michael Sveum instead of viewing all the typing heads. (On the blog circuit they’re all typing heads, not talking heads.)
At first glance, I felt that the court came to the difficult but correct decision — after all, we do drive in public. I was going to go my merry way when I realized that the decision still bothered me, so sat back and tried to think it through.

The State claims, and the court affirms, that there was no expectation of privacy by the defendant since he was driving in a location visible to the general public. The court relies on US v. Knotts, 460 U.S. 276 (1983):

A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [one of the defendant’s accomplices] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

… [N]o … expectation of privacy extended to the visual observation of [the] automobile arriving on [the private] premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the “open fields.”

Visual surveillance from public places along [the] route or adjoining Knotts’ premises would have sufficed to reveal all of these facts to the police.

Emphasis added.

That’s fine, but what if he had decided he felt like having some privacy and drove to the woods to commune with nature? What if he was a deeply private person and went out late at night to a bar, expecting everyone who would recognize him to be sleeping. Shouldn’t we have the right to expect privacy, despite using public roads?

The court claims that since the information would have been available using methods that do not require a warrant, physically attaching a GPS unit to your car does not require a warrant. The court relies on US v. Garcia, 474 F.3d 994 (7th Cir. 2007):

[I]f police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.

Emphasis added.

Why is there no “practical difference”? When was the last time local police used satellites to track an ordinary person’s car? Would they really have been able to track Mr. Sveum’s driving activity without the physical GPS unit?

Like I started with, I see where the court is coming from, and I’m familiar with the “Bad facts = Bad law” rule. It’s just too reminiscent of 1984 for me.

UPDATE
I just read Scott Greenfield’s post about the NY Court of Appeals requiring, in a 5–4 majority, warrants for GPS tracking. Good for New York!
I commented there and Scott helped clarify my murky concerns regarding Wisconsin’s decision.

Great article I discovered via Gideon (again): ‘I’ve Got Nothing to Hide’ and Other Misunderstandings of Privacy . Excellent response to J. Posner’s attempts to mollify privacy advocates.