msimons

Mind you in this case it was a person videotaping police, but the federal judge clearly calls out "public/govt employees".
This will likely permit videotaping in places currently not allowed, such as San Diego airport.

http://peacefreedomprosperity.com/56...endment-right/

tkey75

This is wonderful news and a benchmark judgement. As I tranit BOS from now on, I will openly carry a small digtal recorder.

nachtnebel

yes, it is great, but only half the equation. What is the financial penalty likely to be inflicted on these two officers and their city? without a significant penalty, these rulings have no teeth.

gojirasan

Very well put. I was arrested for this sort of thing, and I guess that is one reason why I feel like I live in a police state. I wish I had seen that ruling before that night. I would have videotaped the situation with my cell phone and would probably not be facing any false charges except for the wiretapping one.

I didn't videotape because I was 100% certain that I would be arrested immediately, I didn't want to escalate the situation needlessly, and I was unsure of my legal status if I was charged with illegal surveillance. As a warning to any of you, don't ever believe in the myth of innocent until proven guilty when you are the one facing charges. You have to be able to prove your innocence.

This has huge implications when it comes to flying out of BOS. Now I would probably venture to openly videotape airport police etc. Of course the legal fees in defending yourself would still be huge and you can't get unbeaten by angry cops. "You might beat the rap, but not the ride" still applies.

cestmoi123

Be a bit careful on that point. The decision goes into some depth, but a key issue in resolving it in favor of the filmer was that he was doing so openly, and not attempting to hide that he was doing so. As such, the court ruled that he wasn't violating the (extremely broad) MA wiretap law. If he had been using some form of hidden recorder, however, the court is pretty clear that he _would_ have been violating the law, or at least that there would have been probable cause to justify arresting him for violating the law (and hence, grounds to dismiss his complaint that the officers violated his 4th Amendment rights.

Secondly, it's worth pointing out that this is a 1st Circuit case, and, hence, not actually binding outside of Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico (which we all know is right off the Maine coast...). That being said, it's certainly helpful.


1. Were Glik’s Fourth Amendment Rights Violated?
The existence of a Fourth Amendment violation on the facts alleged here turns on a question of Massachusetts law. The Fourth Amendment requires that an arrest be grounded in probable cause, Martínez-Rodríguez v. Guevara, 597 F.3d 414, 420 (1st Cir. 2010), i.e., that, “at the time of the arrest, the ‘facts and circumstances within the officer’s knowledge . . . [were] sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect [had] committed, [was] committing, or [was] about to commit an offense,’” Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). The thrust of Glik’s Fourth Amendment claim is that the appellants lacked any such probable cause that Glik had violated state law at the time of arrest. The appellants argue, to the contrary, that the allegations of the complaint establish probable cause that Glik violated Massachusetts’s wiretap statute. Upon examination of the statute and relevant case law from Massachusetts’s Supreme Judicial Court, we disagree.
Massachusetts’s wiretap statute makes it a crime to “willfully commit[] an interception . . . of any wire or oral communication.” Mass. Gen. Laws ch. 272, § 99(C)(1). As the Supreme Judicial Court has noted, this statute sweeps more broadly than comparable laws in other jurisdictions, in that its prohibition is not restricted to the recording of communications that are made with a reasonable expectation of privacy. SeeCommonwealth v. Hyde, 750 N.E.2d 963, 967-68 & n.5 (Mass. 2001). The critical limiting term in the statute is “interception,” defined to mean “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” Id. § 99(B)(4).
The relevant question, then, is whether, on the facts alleged in the complaint, Glik “secretly” videotaped the appellant officers. The Supreme Judicial Court has held that a recording is “secret” unless the subject has “actual knowledge” of the fact of recording. Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976). It has also made clear that “actual knowledge” can be proven by “objective manifestations of knowledge” to “avoid the problems involved in speculating as to the [subject's] subjective state of mind.” Id. at 340-41. Moreover, the court has noted that “actual knowledge” does not require that there be any explicit acknowledgment of or reference to the fact of the recording. Id. at 340 (“[T]he person recording the conversation [need not] confirm the [subject's] apparent awareness by acknowledging the fact of the intercepting device.”). Thus, in Hyde, where the defendant was convicted of a wiretap violation for secretly recording a traffic stop, the Supreme Judicial Court explained that “the recording would not have been secret” within the meaning of the statute if the defendant had simply “held the tape recorder in plain sight.” 750 N.E.2d at 971. The unmistakable logic of Hyde, building on Jackson, is that the secrecy inquiry turns on notice, i.e., whether, based on objective indicators, such as the presence of a recording device in plain view, one can infer that the subject was aware that she might be recorded.
Commonwealth v. Rivera, 833 N.E.2d 1113 (Mass. 2005), forcefully illustrates this point. There, a criminal defendant argued for suppression under the wiretap statute of an audio recording by a convenience store security camera, on the theory that he lacked actual knowledge that the security cameras recorded audio as well as video. Although the case was resolved on other grounds, four of the seven justices of the Supreme Judicial Court concurred to note that the defendant’s unawareness of the audio recording capabilities of the security cameras did not render the recordings “secret” under the wiretap statute where the cameras were in plain sight. Id. at 1125 (Cowin, J., concurring in part) (“That the defendant did not know the camera also included an audio component does not convert this otherwise open recording into the type of ‘secret’ interception prohibited by the Massachusetts wiretap statute.”);id. at 1130 (Cordy, J., concurring) (“Just because a robber with a gun may not realize that the surveillance camera pointed directly at him is recording both his image and his voice does not . . . make the recording a ‘secret’ one within the meaning and intent of the statute.”).
The complaint alleges that Glik “openly record[ed] the police officers” with his cell phone, and further that “the police officers admitted Mr. Glik was publicly and openly recording them.” On its face, this conduct falls plainly outside the type of clandestine recording targeted by the wiretap statute. See Jackson, 349 N.E.2d at 339 (“While we recognize that [the wiretap statute] is designed to control the use of electronic surveillance devices by private individuals because of the serious threat they pose to ‘the privacy of all citizens,’ (§ 99A), it is clear that the Legislature intended that the statutory restrictions be applicable only to the secretuse of such devices.” (emphasis added)). Moreover, not only doesHyde (along with the Rivera concurrences) indicate that the use of a recording device in “plain sight,” as here, constitutes adequate objective evidence of actual knowledge of the recording, but here the police officers made clear through their conduct that they knew Glik was recording them. Specifically, one of the police officers approached Glik after the suspect had been handcuffed and told him, “I think you have taken enough pictures.”
The officers protest that Glik’s use of a cell phone was insufficient to put them on notice of the recording. They note that a cell phone, unlike the tape recorder used in Hyde, has numerous discrete functions, such as text messaging, internet browsing, video gaming, and photography, and thus the fact of an individual holding out a cell phone in front of his body is of indeterminate significance. The argument suffers from factual as well as legal flaws. The allegations of the complaint indicate that the officers were cognizant of Glik’s surveillance, knew that Glik was using his phone to record them in some fashion, and were aware, based on their asking Glik whether he was recording audio, that cell phones may have sound recording capabilities. The fact that a cell phone may have other functions is thus irrelevant to the question of whether Glik’s recording was “secret.”
Appellants’ argument reduces to the contention that, though they were aware of Glik’s recording, they initially thought Glik was taking pictures of them rather than recording video and audio. This is almost precisely the argument rejected by the four concurring justices in Rivera, and it runs directly contrary to the logic of Hyde’s “plain view” discussion. Taking the appellants’ argument to its logical end, the Hydedefendant’s recording would have escaped a wiretap offense only if he had held his tape recorder in plain view and there was affirmative evidence that the officers were aware that the device was switched on and recording audio. To the contrary,Hyde makes the point that the use in plain view of a device commonly known to record audio is, on its own, sufficient evidence from which to infer the subjects’ actual knowledge of the recording. See 750 N.E.2d at 971 (noting that recording would not have been secret under the statute if “the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight” (emphasis added)). Simply put, a straightforward reading of the statute and case law cannot support the suggestion that a recording made with a device known to record audio and held in plain view is “secret.”
We thus conclude, on the facts of the complaint, that Glik’s recording was not “secret” within the meaning of Massachusetts’s wiretap statute, and therefore the officers lacked probable cause to arrest him. Accordingly, the complaint makes out a violation of Glik’s Fourth Amendment rights.

tkey75

I am specifically talking about doing this in MA, my home state. I've followed this issue since it happened and have always felt exactly as the good judges ruled. ^

I'm not digging for the quote, but it does say specifically that if the recorder is out in the open and can be seen, one must make the presumption that they are being recorded, whether they are or not, and therefore not in violation.

cestmoi123

Exactly. You don't need to announce to everyone "you're being recorded," just holding it in plain sight is fine (as I read the decision, anyway). Keeping the recorder tucked into your jacket pocket and out of sight, however, could present problems.

Ari

I assume there will be an appeal, so we should probably wait for that result.

gojirasan

I thought this was the appeal. Can they appeal again? Maybe they will appeal to the supreme court who will no doubt rule that the police are always right and civilians are always wrong. Nevertheless, for now, this ruling stands and we have at least some defense against the police state.

I really need to buy some kind of decent video recorder specifically for this purpose. Maybe something like this. OTOH, the cops will probably stomp on the thing. So anything that expensive is probably not the best idea.

So something cheap and with the ability to transmit the video to a remote location. If the video is actually worth anything you have to assume it will at least be erased. Any ejectable cards will probably be 'lost' or destroyed unless you have time to hide them somewhere before the pork grabs the camera. Based on this ruling it actually seems cell phones may not be ideal. The police will probably always try to argue that they are multi-use devices and try to make the same argument they made in this case. They can't make that argument at all if you are using a digicam (either still or video). And the larger the device the better.

I'm guessing that eventually the cops will learn from this ruling and stop asking whether the recording device records audio since that is an open admission that they are aware of the device. They will just arrest you as soon as they see the camera and let you fight it out in court. As always they have nothing to lose. The courts pretty much never punish cops.

Ari

I read it wrong and you are indeed correct; this is bigger than I thought. I'll have to read the whole opinion . . .

Of course, to the Supreme Court.

The impending 7th Circuit ruling is the more likely candidate for certiorari if it splits the Circuits. Judge Posner was very concerned with the welfare police at oral argument and didn't seem to realize that the 40++ states that don't have these strange laws haven't become crime-ridden cesspools with impotent law enforcement as a result of audio recordings made by the public. But I think that this case will first be re-heard en banc whichever way the panel rules, and I predict the initial ruling will be handed down by a split panel as the other two Judges (Hamilton and Sykes from memory, but I could be misremembering it wrong from September) expressed grave concern with the Cook County State Attonrey's position (which is that of the police in this case).

I would not assume the Supreme Court will wrie off the First Amendment for the convenience of police.

It should be good law for a while in that Circuit.

TSORon

An interesting case, thanks for posting the link.

But, since this is FlyerTalk and not the Boston Freedom Rights Watch, I will put my part of the discussion strictly within the realm of what occurs or may occur on the TSA checkpoint and airport grounds.

The decision fails to address several areas of interest to those who wish to “record” at a TSA checkpoint.
Firstly, is airport property public? In most cases I think you will find that airport property is not strictly public property but is owned and operated by a city’s “Airport Authority”. Certainly the public has access to the property, but that comes with certain limitations. Most airports use signs to notify the public that in this place you may be subject to search, thereby providing one the opportunity to avoid such a search by not entering the property. “Not seeing” the signs or not reading them is not a sufficient argument to protect or exempt one from a search while on that property, there is plenty of notice to the public. Nor is there any law that requires that the property owners provide signage in languages other than English just as there is no law requiring that each patron stand there and read the signs.

Secondly, recording things of public interest. While you as the individual recording the event may feel that it is of public interest, your belief is not the determining factor. “IF” it goes to a court then it is the judicial system which will make that decision. So, best to be cautious when whipping out that cell phone camera or other recording device.

Thirdly, take a few minutes to do some research on the state statutes in which you intend to use your device. Each state has different laws (States Rights, remember that one?), and I cant think of one that exactly matches that of another. So while Texas may allow unrestricted recording on public property, it may restrict it on private. Or while Wyoming may allow one party to secretly record a 2 party interaction, Colorado may require that both parties be aware of the recording. Individual cities and municipalities may also have differing civil codes in this area as well. Remember, GOOGLE is your friend.

And last but not least, recording at a TSA checkpoint. Feel free, rock on, and have a good time. 2 things you will not be allowed to record. Screening in the private screening room (it’s one of the reasons we call it private, and if you are concerned about civil rights violations while in the private screening room, then choose your own witness and bring them along for the screening, we allow that), and recording the output of any electronic screening device (the new ATR systems I believe are excluded from that). These technologies provide a great deal of information on their output devices that is SSI and not open to public inspection or recording.

Otherwise I think the court did an excellent job on that decision.

Michael El

EXACTLY what the TSA wants us to do. Be too afraid to challenge them because we might face "criminal" charges.

I think a few Bivens suits against a few TSOs will stop the abuses.

TSORon

I agree, in part. A couple of Bivins suits would clarify many questions and concerns that people here have about TSA’s policies and procedures.

Things like: Does TSA in good faith remain within the confines of the Administrative Search doctrine, Does the property owner have the right to make access to their property conditional, Does TSA’s administrative searches remain within the court defined constraints of the Fourth Amendment, and does presenting yourself and your property for screening affect how the Administrative Search doctrine can be applied?

I have no doubt about the general outcome of such a series of suits, it’s the specifics that none of us can even venture to guess at. We know that Administrative Searches are “black letter “ law, but that some agencies attempt to circumvent or blur the confines of that law to meet its own goals. The current decisions also leave some gray area that needs to be cleared up.

But here is a problem that cannot be solved. There are many folks here and elsewhere who believe that their interpretation of the Fourth Amendment is the only one, and the only correct one. These people are usually called “Strict Constutionalist’s” and they ignore the decisions of the courts whose job it is to provide our nation with detailed laws and decisions concerning the concepts the Constitution gives us. Personally, I call them fools. Ignoring those folks that the Constitution specifically designates as its definers is idiocy. The Constitution is not just the Bill of Rights, it has many parts, including parts that define (in general terms) what governments responsibilities to its citizens are. If you are going to claim knowledge of one part it is wise to also learn the other parts.

saulblum

I'd love to see a challenge to the restriction on photography of monitors. It is not the passenger's job to ensure the SSI status of the screens. In many airports they are plainly visible to the naked eye from many vantage points open to the public. If they are so secretive, then why are they visible to passengers?

sbrower

The output of the displays clearly is not intended to be SSI (even though there is an SSI message displayed on the screen) because they are positioned so as to be readily visible to the public. In many airports you can also view them from outside of the screening area.