A case for non-enforcement of anti-recording laws against citizen recorders.

• Author: Brncik, Mark

"An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws." (1)

INTRODUCTION

In September of 2010, police officers in Roy, Utah shot and killed Todd Blair while executing a no-knock warrant to search his home for drugs. (2) Roy Police Chief Greg Whinham claimed that Blair was holding a golf club above his head and that he approached the officer "in an attacking motion." (3) The Roy police recorded the incident. (4) The Salt Lake Tribune posted the video on its website, (5) and later the video was also uploaded to YouTube. (6) The video of the Blair shooting sparked a debate over whether the tactics the police used to raid Blair's home went too far. (7) Police investigators analyzed the video and cleared the officer of wrongdoing because he "had less than a second" to determine whether Blair was holding a golf club or a sword. (8) The Roy police department's video recording of the Blair shooting was key in the debate over police tactics that followed the shooting, as well as the exoneration of the officer involved. (9)

When citizens record the police, however, some police officers become camera-shy. (10) In March 2010, Anthony Graber was pulled over for "popping a wheelie" on a Maryland highway while driving eighty miles per hour in a sixty-five mile-per-hour zone. (11) Graber had a small camera mounted on his bike helmet. (12) The plain-clothes officer who pulled Graber over was "wielding a gun" while he approached Graber, but later holstered the weapon and gave Graber a speeding ticket. (13) On March 10, Graber posted the video of his encounter with the officer on YouTube. (14) Prosecutors responded by obtaining a grand jury indictment alleging that Graber violated a Maryland wiretap law. (15) Maryland's wiretapping statute prohibits a person from recording another person's oral communications unless all parties consent to the recording. (16) This statute and other so-called "all-party consent" wiretapping statutes apply where a citizen secretly records an oral communication. (17)

The charges filed against Graber led to widespread criticism. Opponents cite the 1991 Rodney King video, which showed Los Angeles police officers unjustifiably beating King, as evidence that public recording of police can expose problems in police forces--racism and brutality in King's case--and set the stage for positive change. (18) Some recent examples of newsworthy police recordings are the Oakland Bay Area Rapid Transit (BART) shooting video, in which several private citizens used their cell phone cameras and various pocket-sized recording devices to capture a police officer shooting a suspect, (19) and recordings of police interactions with Occupy Wall Street protestors, which show police using pepper spray against protestors. (20) After the BART shooting videos were passed around on the Internet, a case "normally ... played out in a courtroom" became "one in which anyone with an Internet connection [could] serve as virtual judge and jury." (21) The same can be said for the newscasts of the King video. These videos put police conduct on stark display and led to widespread debate. (22)

Police recordings allow the public to view and debate police tactics. While the trooper's conduct in the Graber incident was not as disturbing as the conduct of the police in the King, BART, Blair, or Occupy Wall Street incidents, some aspects of Graber's traffic stop were troubling. The trooper in the Graber video "cut Graber off in an unmarked vehicle, approached Graber in plain clothes and yelled while brandishing a gun before identifying himself as a trooper." (23) If the public was barred from recording videos of on-duty police, it is unlikely that these instances of police abuse would have received the degree of attention and debate that they deserved. Prosecuting citizen recorders "discourages people from filming ... even when they have a right to film." (24) The potential of receiving a substantial punishment (25) for recording police has a chilling effect on citizens who wish to record police misconduct. This Note argues that all-party consent wiretapping laws are privacy laws that can only be properly construed to protect the privacy rights of private citizens and are not applicable to the recording of police while they are performing their public duties. Since many of these prosecutions rest on a faulty interpretation of all-party consent statutes, this Note recommends that law enforcement agents not bring charges based on the these statutes against citizen recorders.

Part I of this Note presents a general background of federal and state wiretapping laws, focusing on different varieties of all-party consent statutes. Part II analyzes the privacy rights of on-duty police. Part III then examines the importance of public video recordings of on-duty police. Part IV discusses the problems raised by enforcing all-party consent statutes against citizen recorders, and looks at problems with current proposals to amend all-party consent statutes to allow police recording. Finally, Part V argues that, given the reduced expectation of privacy of police officers and the unlikelihood that citizen recorders will be convicted under an all-party consent wiretapping statute for recording police activities, police departments and prosecutors should adopt a voluntary policy of non-enforcement of all-party consent statutes against citizen recorders.

1. ONE-PARTY AND ALL-PARTY WIRETAPPING STATUTES: A BRIEF OVERVIEW

   Wiretapping statutes come in two forms: all-party consent statutes and one-party consent statutes. This Part clarifies the difference between the two and provides a general background of these laws, and discusses state variations of all-party consent wiretapping statutes. Then, this Part briefly details different punishments under all-party consent statutes. Lastly, this Part analyzes the legislative intent behind all-party consent statutes.

   1. The Federal Wiretapping Statute and State One-Party Consent Statutes

      Title III of the Omnibus Crime Control and Safe Streets Act of 1968, (26) also known as the "Wiretap Act," (27) sets out the requirements for obtaining a legal wiretap and defines what constitutes a legal wiretap. (28) The Wiretap Act prohibits a private person from using a recording device to intercept an oral communication. (29) The Act, however, permits a person to record his or her own conversations, or to intercept a conversation between two or more people where one of the parties to the conversation consents to the recording. (30) Thus, the Act and other state statutes that track its language (31) are referred to as "one-party consent" wiretapping laws. The Wiretap Act has two goals: (1) to "forbid[] the interception of wire, oral or electronic communications by private persons" unless one party consents to the interception and (2) to give law enforcement the ability to secure judicial approval of a wiretap in an effort to curb organized crime. (32) While private citizens are not permitted to record a conversation unless one of the parties consents, police may secretly record conversations without consent provided that the recording is authorized by a judicial order. (33) Finally, The Wiretap Act and state statutes following the one-party consent approach do not allow citizens to make recordings for a criminal or tortious purpose, regardless of whether one party consented to the recording. (34)

   2. All-Party Consent Anti-Wiretapping Statutes

      The Wiretap Act authorized states to enact their own wiretapping statutes, (35) and most states have done so. (36) The federal statute permits states to adopt statutory schemes that are more restrictive than the federal statute, but does not permit states to enact more permissive statutes. (37) States were thus able to enact the more restrictive all-party consent wiretapping statutes that are at issue in this Note.

      Anthony Graber's prosecution involved the application of an all-party consent wiretapping statute. (38) All-party consent wiretapping statutes prohibit recording a conversation unless all the parties to that conversation consent to the recording. Thirteen states currently have all-party consent laws. (39) Maryland, for example, makes it a crime to "[w]illfully intercept ... any wire, oral, or electronic communication" (40) but allows a person to intercept a "wire, oral, or electronic communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception." (41) The Maryland statute, like eleven of the thirteen all-party consent statutes, specifies that only the secret recording of a private conversation is prohibited. (42) The prosecution in the Graber case argued that Graber violated the Maryland all-party consent wiretapping law by videotaping his conversation with the trooper who pulled him over without first obtaining that trooper's consent to be recorded. (43)

      Two states' wiretapping statutes can plausibly be construed to apply to all communications, whether private or not. The Illinois wiretapping statute forbids a person from recording a conversation "unless [that person] does so ... with the consent of all of the parties to such conversation...." (44) Illinois defines a conversation as "any oral communication between [two] or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation." (45) The Massachusetts wiretapping statute prohibits the "interception ... of any ... oral communication," and provides that "'interception' means to ... secretly record the contents of any ... oral communication." (46) Because these two statutes specifically apply to all oral communications, they could prohibit citizen recordings of police. (47)

   3. Punishments Under Wiretapping Statutes

      All-party consent wiretapping...