[Infowarrior] - Boston police fight cellphone recordings

[Richard Forno]

Police fight cellphone recordings

Witnesses taking audio of officers arrested, charged with illegal  
surveillance
By Daniel Rowinski, New England Center For Investigative Reporting  |   
January 12, 2010

http://www.boston.com/news/local/massachusetts/articles/2010/01/12/police_fight_cellphone_recordings

Simon Glik, a lawyer, was walking down Tremont Street in Boston when  
he saw three police officers struggling to extract a plastic bag from  
a teenager’s mouth. Thinking their force seemed excessive for a drug  
arrest, Glik pulled out his cellphone and began recording.

Within minutes, Glik said, he was in handcuffs.

“One of the officers asked me whether my phone had audio recording  
capabilities,’’ Glik, 33, said recently of the incident, which took  
place in October 2007. Glik acknowledged that it did, and then, he  
said, “my phone was seized, and I was arrested.’’

The charge? Illegal electronic surveillance.

Jon Surmacz, 34, experienced a similar situation. Thinking that Boston  
police officers were unnecessarily rough while breaking up a holiday  
party in Brighton he was attending in December 2008, he took out his  
cellphone and began recording.

Police confronted Surmacz, a webmaster at Boston University. He was  
arrested and, like Glik, charged with illegal surveillance.

There are no hard statistics for video recording arrests. But the  
experiences of Surmacz and Glik highlight what civil libertarians call  
a troubling misuse of the state’s wiretapping law to stifle the kind  
of street-level oversight that cellphone and video technology make  
possible.

“The police apparently do not want witnesses to what they do in  
public,’’ said Sarah Wunsch, a staff attorney with the American Civil  
Liberties Union of Massachusetts, who helped to get the criminal  
charges against Surmacz dismissed.

Boston police spokeswoman Elaine Driscoll rejected the notion that  
police are abusing the law to block citizen oversight, saying the  
department trains officers about the wiretap law. “If an individual is  
inappropriately interfering with an arrest that could cause harm to an  
officer or another individual, an officer’s primary responsibility is  
to ensure the safety of the situation,’’ she said.

In 1968, Massachusetts became a “two-party’’ consent state, one of 12  
currently in the country. Two-party consent means that all parties to  
a conversation must agree to be recorded on a telephone or other audio  
device; otherwise, the recording of conversation is illegal. The law,  
intended to protect the privacy rights of individuals, appears to have  
been triggered by a series of high-profile cases involving private  
detectives who were recording people without their consent.

In arresting people such as Glik and Surmacz, police are saying that  
they have not consented to being recorded, that their privacy rights  
have therefore been violated, and that the citizen action was criminal.

“The statute has been misconstrued by Boston police,’’ said June  
Jensen, the lawyer who represented Glik and succeeded in getting his  
charges dismissed. The law, she said, does not prohibit public  
recording of anyone. “You could go to the Boston Common and snap  
pictures and record if you want; you can do that.’’

Ever since the police beating of Rodney King in Los Angeles in 1991  
was videotaped, and with the advent of media-sharing websites like  
Facebook and YouTube, the practice of openly recording police activity  
has become commonplace. But in Massachusetts and other states, the  
arrests of street videographers, whether they use cellphones or other  
video technology, offers a dramatic illustration of the collision  
between new technology and policing practices.

“Police are not used to ceding power, and these tools are forcing them  
to cede power,’’ said David Ardia, director of the Citizen Media Law  
Project at Harvard’s Berkman Center for Internet and Society.

Ardia said the proliferation of cellphone and other technology has  
equipped people to record actions in public. “As a society, we should  
be asking ourselves whether we want to make that into a criminal  
activity,’’ he said.

In Pennsylvania, another two-party state, individuals using cellphones  
to record police activities have also ended up in police custody.

But one Pennsylvania jurisdiction has reaffirmed individuals’ right to  
videotape in public. Police in Spring City and East Vincent Township  
agreed to adopt a written policy confirming the legality of  
videotaping police while on duty. The policy was hammered out as part  
of a settlement between authorities and ACLU attorneys representing a  
Spring City man who had been arrested several times last year for  
following police and taping them.

In Massachusetts, Wunsch said Attorney General Martha Coakley and  
police chiefs should be informing officers not to abuse the law by  
charging civilians with illegally recording them in public.

The cases are the courts’ concern, said Coakley spokesman Harry  
Pierre. “At this time, this office has not issued any advisory or  
opinion on this issue.’’

Massachusetts has seen several cases in which civilians were charged  
criminally with violating the state’s electronic surveillance law for  
recording police, including a case that was reviewed by the Supreme  
Judicial Court.

Michael Hyde, a 31-year-old musician, began secretly recording police  
after he was stopped in Abington in late 1998 and the encounter turned  
testy. He then used the recording as the basis for a harassment  
complaint. The police, in turn, charged Hyde with illegal wiretapping.  
Focusing on the secret nature of the recording, the SJC upheld the  
conviction in 2001.

“Secret tape recording by private individuals has been unequivocally  
banned, and, unless and until the Legislature changes the statute,  
what was done here cannot be done lawfully,’’ the SJC ruled in a 4- 
to-2 decision.

In a sharply worded dissent, Chief Justice Margaret Marshall  
criticized the majority view of a law that, in effect, punished  
citizen watchdogs and allowed police officers to conceal possible  
misconduct behind a “cloak of privacy.’’

“Citizens have a particularly important role to play when the official  
conduct at issue is that of the police,’’ Marshall wrote. “Their role  
cannot be performed if citizens must fear criminal reprisals when they  
seek to hold government officials responsible by recording, secretly  
recording on occasion, an interaction between a citizen and a police  
officer.’’

Since that ruling, the outcome of Massachusetts criminal cases  
involving the recording of police by citizens has turned mainly on  
this question of secret vs. public recording.

Jeffrey Manzelli, 46, a Cambridge sound engineer, was convicted of  
illegal wiretapping and disorderly conduct for recording MBTA police  
at an antiwar rally on Boston Common in 2002. Though he said he had  
openly recorded the officer, his conviction was upheld in 2007 on the  
grounds that he had made the recording using a microphone hidden in  
the sleeve of his jacket.

Peter Lowney, 39, a political activist from Newton, was convicted of  
illegal wiretapping in 2007 after Boston University police accused him  
of hiding a camera in his coat during a protest on Commonwealth Avenue.

Charges of illegal wiretapping against documentary filmmaker and  
citizen journalist Emily Peyton were not prosecuted, however, because  
she had openly videotaped police arresting an antiwar protester in  
December 2007 at a Greenfield grocery store plaza, first from the  
parking lot and then from her car. Likewise with Simon Glik and Jon  
Surmacz; their cases were eventually dismissed, a key factor being the  
open way they had used their cellphones.

Surmacz said he never thought that using his cellphone to record  
police in public might be a crime. “One of the reasons I got my phone  
out . . . was from going to YouTube where there are dozens of videos  
of things like this,’’ said Surmacz, a webmaster at BU who is also a  
part-time producer at Boston.com.

It took five months for Surmacz, with the ACLU, to get the charges of  
illegal wiretapping and disorderly conduct dismissed. Surmacz said he  
would do it again.

“Because I didn’t do anything wrong,’’ he said. “Had I recorded an  
officer saving someone’s life, I almost guarantee you that they  
wouldn’t have come up to me and say, ‘Hey, you just recorded me saving  
that person’s life. You’re under arrest.’ ’’

The New England Center for Investigative Reporting at Boston  
University is an investigative reporting collaborative. This story was  
done under the guidance of BU professors Dick Lehr and Mitchell  
Zuckoff.