Woman Charged With ‘Wiretapping’ For Recording Her Own Arrest (But Federal Law May Protect Her)

PoliceMassachusetts law enforcement
officials are shy creatures; they deeply resent being recorded,
even when going about taxpayers’ business in public places. The
latest person to feel their wrath is Karen Dziewit, of Chicopee,
Massachusetts. She faces
wiretapping charges
for using her smartphone to record police
officer who were busting her for disorderly conduct and possessing
an open container of alcohol. That’s a popular application of the
law in the state by cops who like operating unmonitored, but a
recent federal appeals court decision suggests that she was well
within her rights.

According to

According to city police, Dziewit was arrested while drinking on
Chestnut Street early Sunday morning. Prior to being taken into
custody, police said, she activated an audio recording app on her
smartphone. Police discovered the phone, with the recording feature
still engaged, during the booking process, which triggered the
unlawful wiretap charge.

Massachusetts law prohibits the recording of audio without the
consent of the person being recorded.

Massachusetts is a “two
party consent
” state both regarding electronic communications
and in-person conversations. The
statute criminalizes anybody who
“willfully commits an
interception, attempts to commit an interception, or procures any
other person to commit an interception or to attempt to commit an
interception of any wire or oral communication.”

Cops in the state have been enthusiastic about using the law to
record their activites without their say-so. Needless to say, if
you ask for permission, the likely answer is “no.”

Activist Peter Lowney was convicted in 2007 of “wiretapping”
a Boston University police sergeant
with a hidden video camera
during a political protest. And libertarian police accountability
activists Adam Mueller and Pete Eyre were similarly charged for
recording at a Franklin County jail, though a
jury later acquitted them of all charges

A jury may not be the only hope for Dziewit. In 2011, the
First Circuit Court of Appeals
ruled in favor of activist Simon
Glik, who recorded an arrest on Boston Common.

[I]s there a constitutionally protected right to videotape
police carrying out their duties in public? Basic First Amendment
principles, along with caselaw from this and other circuits, answer
that question unambiguously in the affirmative.

Jeffe Hermes of the Digital Media Law Project understandably
that decision “a victory for recording in

The court language seems unambiguous, but Glik was
openly recording; Dziewit didn’t announce her intentions
or brandish the phone (which would not have been a recommended
move, anyway). That may be just enough of a difference for the
Hampden County District Attorney to hang his transparency-hating
hat on.

But that federal appeals court decision really seems to suggest
that recording the cops in public is a right, and the wiretapping
law doesn’t shield them from scrutiny when they’re going about
their duties.

from Hit & Run http://ift.tt/1smTwXt

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