Recording in public
After I wrote a column and blogged about the motorcyclist who recorded his traffic stop with a Maryland State Police trooper -- and then got charged with violating the state's wiretap laws -- I heard from lots of people that I had missed the mark.
And it appears I had. I learned more information after a Baltiore police officer was caught on camera imploring the photographer at the Preakness to leave the scene of an arrest and turn off his video because he was breaking the law.
I had talked with state police officials, prosecutors and several defense attorneys (including one who was a former federal prosecutor). All told me that it appeared the Harford County State's Attorney was interpreting the law correctly, though most disagreed with his decision. His reading of the law is that it's illegal to record the voice of anyone without their consent, even in a public place.
(Cops get caught on tape all the time. Here is a compilation of some footage of a city officer berating a skateboarder at the Inner Harbor and Prince George's County tactical officers beating a student).
Turns out there does appear to be an exception for intercepting voices in public places, though the law isn't that explicit. The laws you cannot "wilfully intercept oral communicatons" and it defines oral communications as "any conversation or words spoken to or by any person inn private conversation."
That would appear to mean that if you record a person at the Inner Harbor without their consent, you're not breaking the state's wiretap law. That's how former Maryland Attorney General J. Joseph Curran Jr. interpreted it in an opinion that the current holder of his job points to as the blueprint:
"Statements that a person knowingly exposes to the public are not made with a reasonable expectation of privacy and therefore are not protected as 'oral communicatiions' under the state and federal wiretap laws."
Of course, now you can start parsing what is conversation exposed to the public? Seems that virtually anything that happens at the Preakness is public -- I mean how can you reasonably expect privacy at a drunk-fest attending by nearly 100,000 people. But what about the traffic stop? It occurred on a public road but can the officer legitimately claim that he had an expectation of privacy while talking to the driver? The Maryland ACLU says no, that the officer has no expectation of privacy while performing his duties.
Seems there's plenty left for the lawyers to do.
But aside from the law, I hear complaints all the time for from people who say they were told to stop filming police officers or told to stop photographing crime scenes. One explanation that is routinely given is that the person is interfering with the investigation. That certainly can be true, but it doesn't seem that way in the Preakness case.
There was a fairly large crowd that watched officers scuffle with a woman and ultimately arrest her. The officer singled out the man with camera, who appeared to be as far back as everyone else. Here's what the officer said: "Do me a favor and take a walk. Now. Do me a favor and turn that off. It's illegal to record anybody's voice or anything else in the state of Maryland."
Baltimore police spokesman Anthony Guglielmi, who says the law appears muddled, insists that the officer was not giving an order but merely asking a favor. Watch the video and decide, but to most people, the officer's tone, body language and terse voice makes this a command. Gugliemli notes correctly that the cameraman was not arrested, the camera was not seized and it appears that he continues to film for a few moments after the officer spoke with him.
Still, for the ACLU's attorney David Rocah, the intent was clear: the officer intimidated the photographer to stop recording by threatening him with a crime that does not exist. For him, that is part of a pattern of behavior by cops to bar people from filming them.
The ACLU has taken up the case of the motorcyclist. Not only does the group contend he had every right to record the stop, but they say they plan to argue that state police charged him only to retaliate for posting the humiliating video on YouTube. Police told me they charged him after the video appeared only because that's how they discovered the stop had been taped.
That trial is scheduled in Harford County on June 1.