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LAX Police Department cites CA wiretapping law to prohibit photography of TSA

LAX Police Department cites CA wiretapping law to prohibit photography of TSA

Old Oct 4, 2011, 2:43 pm
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LAX Police Department cites CA wiretapping law to prohibit photography of TSA

Hello folks,

Before flying out of LAX, I got in touch with the police department's public information officer and asked if there were any airport police prohibitions on audio or video recording in the TSA checkpoint area. I even read to her the TSA policy. However, she stated that LAX PD has responded to calls from the TSA of people taking photos and would continue to do so. After sending off a certified letter, I received this response:

"Dear Mr. OxonCantab

My sincere apologies for not getting in touch with you prior to the time of your flight out of LAX. As I mentioned to you on the telephone in our previous conversation, as it relates to videotaping at the Transportation Security Administration (TSA) screening area; Airport Police has responded to calls when requested regarding such.

Airport Police does not have a policy as it relates to videotaping the screening process, that area is a Federal area managed by the TSA (who are employed by the federal government). However, as the law enforcement agency at LAX, we have a responsibility to enforce California Penal Code Section 632 (a) – Eavesdropping on or recording confidential communications.

That section states – (CA PC Section 632 (a) ) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records, the confidential communications, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars, or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

This information is taken directly from the California penal code. I hope the information serves as an answer to your question and will be of service to you for future use.

Best Regards,

Sergeant XXXXXXXXXXX
Airport Police Public Information Officer
Los Angeles Airport Police"

Although, I'm not a lawyer, this seems fishy to me. The statute seems to indicate a prohibition on the recording of "confidential communication", and I am not sure that a TSA screening in a public airport could be classified as a "confidential communication" .... what do folks think?
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Old Oct 4, 2011, 2:48 pm
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Makes no sense. So, if I overhear two people having a conversation, I am guilty of eavesdropping if they meant it to be confidential? Huh? If they mean it to be so 'confidential' perhaps they shouldn't carry it on in a public place, like an airport perhaps.
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Old Oct 4, 2011, 3:13 pm
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Seems fishy to me too. There have been several recent court rulings stating that police have no expectation of privacy when recording their duties in public, and therefore recording said police does not violate various states' wiretapping laws. See, for example --

http://www.pixiq.com/article/with-ea...iretapping-war

Therefore (and I am not a lawyer) I find it hard to believe that a TSO or passenger would have any expectation of privacy at a checkpoint.

In fact, I see that the sergeant conveniently left out another clause of the penal code --

http://law.onecle.com/california/penal/632.html

(c) The term "confidential communication" includes any
communication carried on in circumstances as may reasonably indicate
that any party to the communication desires it to be confined to the
parties thereto, but excludes a communication made in a public
gathering or in any legislative, judicial, executive or
administrative proceeding open to the public, or in any other
circumstance in which the parties to the communication may reasonably
expect that the communication may be overheard or recorded.
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Old Oct 4, 2011, 3:31 pm
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Ari
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Originally Posted by OxonCantab
Airport Police does not have a policy as it relates to videotaping the screening process, that area is a Federal area managed by the TSA (who are employed by the federal government). However, as the law enforcement agency at LAX, we have a responsibility to enforce California Penal Code Section 632 (a) – Eavesdropping on or recording confidential communications.
So far everything sounds fine:

(1) The LAX Police does not have a policy as it relates to videotaping the screening process, (2) as a law enforcement agency, LAX Police has the responsibility to enforce the California Penal Code, and (3) the Penal Code includes a section about eavesdropping.

Originally Posted by OxonCantab
That section states – (CA PC Section 632 (a) ) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records, the confidential communications, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars, or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
This appears to be an accurate quotation from the penal code.

Originally Posted by OxonCantab
This information is taken directly from the California penal code. I hope the information serves as an answer to your question and will be of service to you for future use.
I don't know what the question asked was, so I can't say if she answered it or not. To the extent you asked if the LAX Police have a policy regarding photography at the TSA checkpoint, she answered that they do not.

Originally Posted by OxonCantab
Although, I'm not a lawyer, this seems fishy to me. The statute seems to indicate a prohibition on the recording of "confidential communication", and I am not sure that a TSA screening in a public airport could be classified as a "confidential communication" .... what do folks think?
If you read the letter carefully, you will notice that nowhere did she claim that CA PC Section 632 applies to the checkpoint setting. She just said that the section exists, it says this, and that they have a responsibility to enforce the law. She didn't say you'd be breaking that law if you taped the screening process, she just pointed you to the law. Sneaky.

Originally Posted by SuperDudley
Makes no sense. So, if I overhear two people having a conversation, I am guilty of eavesdropping if they meant it to be confidential? Huh? If they mean it to be so 'confidential' perhaps they shouldn't carry it on in a public place, like an airport perhaps.
What constitutes "confidential" is an objective inquiry, not a subjective one (and your post shows why that is necessary).

Originally Posted by saulblum
Seems fishy to me too. There have been several recent court rulings stating that police have no expectation of privacy when recording their duties in public, and therefore recording said police does not violate various states' wiretapping laws. See, for example --

http://www.pixiq.com/article/with-ea...iretapping-war

Therefore (and I am not a lawyer) I find it hard to believe that a TSO or passenger would have any expectation of privacy at a checkpoint.

In fact, I see that the sergeant conveniently left out another clause of the penal code --

http://law.onecle.com/california/penal/632.html
She did leave that out . . . an oversight, I'm sure. But she never offered an opinion as to what would constitute a violation of the Code, so it seems fine to me.
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Old Oct 4, 2011, 3:35 pm
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Seems that you're free to video the checkpoint.
TSA says it's OK
There is no "confidential communications" being recorded.

Tell the cops to pound sand.
Tell TSA to pound sand as well, just to make a point!^
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Old Oct 4, 2011, 3:56 pm
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Originally Posted by Ari
I don't know what the question asked was, so I can't say if she answered it or not. To the extent you asked if the LAX Police have a policy regarding photography at the TSA checkpoint, she answered that they do not.
Although I don't have the exact text of my letter in front of me. It was almost exactly the following:

"Are there any policies or regulations from Los Angeles World Airports or the LAX police department prohibiting the audio and/or video recording the TSA screening process at Los Angeles International Airport?"
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Old Oct 4, 2011, 4:03 pm
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Ari
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Originally Posted by OxonCantab
Although I don't have the exact text of my letter in front of me. It was almost exactly the following:

"Are there any policies or regulations from Los Angeles World Airports or the LAX police department prohibiting the audio and/or video recording the TSA screening process at Los Angeles International Airport?"
So it looks like she did answer your question.
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Old Oct 4, 2011, 6:54 pm
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Originally Posted by saulblum

Therefore (and I am not a lawyer) I find it hard to believe that a TSO or passenger would have any expectation of privacy at a checkpoint.
This. I work in the security industry and a key part of my job is informing customers of legal applications of devices. If there is no expectation of privacy, then by definition you cannot be eavesdropping or surreptitious.

Also, the laws for audio and video recording/photography are different, so if you want to take photos, this is a bit of a moot point.
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Old Oct 4, 2011, 7:16 pm
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Originally Posted by Neutron Star
If there is no expectation of privacy, then by definition you cannot be eavesdropping or surreptitious.
That is true in most states, but that is not the law of all states (think Illinois).
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Old Oct 4, 2011, 8:01 pm
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Originally Posted by Ari
That is true in most states, but that is not the law of all states (think Illinois).
For IL statutes see http://www.rcfp.org/taping/states/illinois.html.

This also gets into implicit vs express consent which is tangential to this thread, which oddly enough is tangential to being able to photograph, not record audio.
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Old Oct 4, 2011, 8:24 pm
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I think she was covering the department's collective rear in letting the OP know that, while there was no policy prohibiting recording, should such recordings violate another law (of which she cited a potential example) the police would enforce that law and that her email should not constitute any kind of exemption. Last thing the department would want is for someone to be arrested under that section of the CA penal code only to present as exculpatory evidence an email from LAXPD granting permission carte blanche to record anything in the terminal.

If you ask her "may we record the security screening" and she gives an unqualified answer in the affirmative, then you sneak into the TSA back room and record a screening that a passenger requested be done in private then they are in a precarious position.
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Old Oct 5, 2011, 12:49 am
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Unfortunately CA is a two party consent state. In any two party consent state the police are likely to at least attempt to charge you with their wiretapping law when recording any law enforcement activity. Whether they consider the TSOs to be de facto LEOs is up to the individual airport cops. But if they don't like the look of you for whatever reason or they are just in a bad mood they might charge you with a violation of the wiretapping law and it would be up to a jury to decide whether his false charges had merit.

If you turn the camera on airport cops themselves they will almost certainly arrest you and charge you with the wiretapping law. I'd be careful with that. To an LEO a video camera is more terrifying than a gun pointed at them. Aside from civilian witnesses willing to testify it is the only limit on their power. To them it is a direct provocation to violence.

In CA I don't think the charges would hold up in court. That is, I would guess that a jury would acquit you due to the lack of expectation of privacy, but of course there is no guarantee. A jury trial is always a roll of the dice. You might beat the rap, but you won't beat the ride, which would probably include time in jail, bail money, and thousands of dollars in legal fees and maybe a beating as well or at least a concussion from a hard take down. The accusation would also stay on your record even if you are acquitted, and could be used against you by judges in the future.

Of all states, Massachusetts has the harshest policy about video taping LEOs (or pseudo-LEOs in this case). I think we have people serving jail sentences for video taping police brutality. One defendant, glik, was acquitted after god knows how much in legal fees due to the fact that his video camera was in plain view just a few feet away from the violent cops. I guess it was just too absurd to call that 'surreptitious'. Most of the other defendants however were not so lucky.

The Massachusetts supreme court has specifically ruled that expectation of privacy is not necessary and that videotaping police is most definitely covered by the statute. OTOH, the Illinois supreme court has recently held just the opposite: that the two party consent law doesn't apply. That on-duty police have no expectation of privacy while in public.

Luckily there are civilian witnesses at airport checkpoints. So it is harder for the airport cops to come and just smash your phone and throw it in the trash after they have Rodney King'ed you a bit for good measure.

Last edited by gojirasan; Oct 7, 2011 at 4:04 am
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Old Oct 5, 2011, 6:01 am
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Originally Posted by Wimpie
Seems that you're free to video the checkpoint.
TSA says it's OK
There is no "confidential communications" being recorded.

Tell the cops to pound sand.
Tell TSA to pound sand as well, just to make a point!^
I know the caveat of an "expectation of privacy" has been used to intimidate people in two-party states for quite a while. In MD, the motorcycle rider who recorded the cop during a traffic stop (which he deserved, BTW) was charged (in addition to his traffic violations) with violating the MD two-party consent law. The judge threw it out stating that there is no expectation of privacy in that situation. Based on this ruling, the TSA and airport cops at BWI took down the no photography signs. The MD ruling and a bunch of YouTube videos caused the TSA, through Blogdad Bob, to hunker down and go on the offensive stating that recording was permitted at checkpoints.

On the flip side, the infamous Linda Tripp WAS succesfully prosecuted for recording the telephone conversations she had with the also-infamous Monica Lewinsky. There was no question that a there IS an expectation of privacy during a point-to-point telephone conversation.

Heck, if the CA law were enforced as advertized, there would be no TMZ.

I've got to believe someone with the resources and a good lawyer who baits a cop into arresting him/her for recording a public TSA encounter at an airport would win the no expectation of privacy argument just like the motorcycle rider in MD.
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Old Oct 5, 2011, 6:42 am
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Has the LAX PD charged anyone with CA PC Section 632 (a) for recording events at a checkpoint with a consumer device (i.e. phone, camera, etc. that records both audio and video)?

I am not an attorney, but I would think the CP area as public, with no expectation of privacy.

Anyone know if they've dinged a pax / observer with this law?
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Old Oct 5, 2011, 7:24 am
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Originally Posted by SDF_Traveler
Has the LAX PD charged anyone with CA PC Section 632 (a) for recording events at a checkpoint with a consumer device (i.e. phone, camera, etc. that records both audio and video)?

I am not an attorney, but I would think the CP area as public, with no expectation of privacy.

Anyone know if they've dinged a pax / observer with this law?

In my phone conversation with the public information officer, she indicated that LAX PD officers had responded in the past to requests from TSA for assistance for people video-recording at the checkpoint but did not specify the outcome of those contacts.
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