Youtube Video sparks controversy over Md. wiretap laws.

[Jason Tandro]

From: http://www.washingtonpost.com/wp-dyn/content/article/2010/06/15/AR2010061505556.html?sid=ST2010061505592

(Too long, don't wanna read? See tl;dr at the bottom for the highlights)

In early March, Anthony Graber, a 25-year-old staff sergeant for the Maryland Air National Guard, was humming a tune while riding his two-year-old Honda motorcycle down Interstate 95, not far from his home north of Baltimore. On top of his helmet was a camera he often used to record his journeys. The camera was rolling when an unmarked gray sedan cut him off as he stopped behind several other cars along Exit 80.

From the driver's side emerged a man in a gray pullover and jeans. The man, who was wielding a gun, repeatedly yelled at Graber, ordering him to get off his bike. Only then did Maryland State Trooper Joseph D. Uhler identify himself as "state police" and holster his weapon. Graber, who'd been observed popping a wheelie while speeding, was cited for doing 80 in a 65 mph zone. Graber accepted his ticket, which he says he deserved.

(Watch the video from the incident)
[Note: The main part of this video doesn't start until 3:00 on. The first 3 minutes is him driving very recklessly and speeding]

A week later, on March 10, Graber posted his video of the encounter on YouTube. What followed wasn't a furor over the police officer's behavior but over Graber's use of a camera to capture the entire episode.
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On April 8, Graber was awakened by six officers raiding his parents' home in Abingdon, Md., where he lived with his wife and two young children. He learned later that prosecutors had obtained a grand jury indictment alleging he had violated state wiretap laws by recording the trooper without his consent.

The case has ignited a debate over whether police are twisting a decades-old statute intended to protect people from government intrusions of privacy to, instead, keep residents from recording police activity.

Maryland's wiretap law applies only to audio recordings, so it is just the sound from Graber's video that is at issue legally. Like 11 other states, Maryland requires all parties to consent before a recording might be made if a conversation takes place where there is a "reasonable expectation of privacy." (By contrast, Virginia and the District require one party's consent to a recording.) But is there any expectation of privacy in a police stop? That's where police and civil libertarians differ.

During a 90-minute search of Graber's parents' home, police confiscated four computers, the camera, external hard drives and thumb drives. The police didn't take Graber to jail that day because he had just had gall bladder surgery.

A week later, he turned himself in. "I just wanted to do the right thing," he said in an April interview with Miami journalist Carlos Miller, who runs the blog Photography Is Not a Crime.

It was Graber's first arrest. He spent 26 hours in jail. Graber has since stopped talking publicly about the case on the advice of his attorneys. On June 1, he was arraigned in Harford County Circuit Court in Bel Air. He faces up to 16 years in prison if convicted on all charges.

The YouTube effect

Maryland's wiretap law has been around since the 1970s, before the VHS era, let alone the digital revolution, and did not anticipate the advent of video cameras attached to helmets or embedded in cellphones. Nor did the law anticipate YouTube and the ease with which such videos could be disseminated. Until now, its most famous alleged violator was Monica Lewinsky confidante Linda Tripp -- then a Columbia resident -- who taped her phone conversations with the aide about her relationship with President Bill Clinton. (The case was dismissed.)

But the decades-old wiretap law has suddenly become a fresh battleground for civil libertarians and bloggers who consider Graber's prosecution and a series of similar arrests a case of government overreach.

The frequency of such arrests has picked up with the spread of portable video cameras and the proliferation of videos showing alleged police misconduct on the Web. Miller has documented eight arrests in the past few years, including one of an Oregon man who was arrested for using his cellphone camera to tape police he says were being rough with a friend and a Chicago artist who taped his arrest for selling $1 artwork. "Most of the people getting arrested are not criminals," Miller said. "It is just really a power trip on the side of police."

The attention the Graber case is receiving has surprised Harford prosecutor Joseph I. Cassilly, who said his office has prosecuted similar cases before, including one within the past year against the passenger of a car that was stopped during a drug investigation who started taping officers with a cellphone camera. Cassilly said he didn't know the status of the case because the prosecutor handling it has been out sick.

"The question is: Is a police officer permitted to have a private conversation as part of their duty in responding to calls, or is everything a police officer does subject to being audio recorded?" Cassilly said.
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Cassilly thinks officers should be able to consider their on-duty conversations to be private. Other officers share that view and have issued warnings to documentarians. Another video that surfaced on YouTube shows a Baltimore police officer at the Preakness warning a cameraman who was recording several other officers subduing a woman that such recordings are illegal.

State police spokesman Greg Shipley said that Uhler acted appropriately and that the officer never pointed his gun at Graber, putting it away as soon as he saw Graber comply with his commands.

Troopers are told to act as if they are being videorecorded, Shipley said. If they see someone videorecording them, they can ask them to stop but are to take no further action even if the cameraman continues, he said. If they think a private conversation is being illegally recorded, they are to contact the local state's attorney's office and let a prosecutor decide whether a violation occurred.

David Rocah, an attorney for the American Civil Liberties Union of Maryland who is part of Graber's defense team, said on-duty officers have no expectation of privacy while doing their job in public. If police need to talk to an informant, they can have a private conversation, he said. "But when they are public officials performing their duty for everyone to see and hear, that is not a private conversation," Roach said.

State supreme courts in Illinois, New Jersey, Pennsylvania and Washington have upheld people's right to record police officers. (Illinois has since made it illegal to record anyone without consent.)

Dashboard videocams

Complicating the issue: Maryland state troopers record traffic stops themselves, using dashboard cameras that were installed in all patrol cars as a result of a 2003 settlement with the state ACLU over racial profiling.

In an August 2000 legal opinion, the state's attorney general wrote that "many encounters between uniformed police officers and citizens could hardly be characterized as 'private conversations' " and that "any driver pulled over by a uniformed officer in a traffic stop is acutely aware that his or her statements are being made to a police officer and, indeed, that they may be repeated as evidence in a courtroom."

But Cassilly says the use of dash cameras does not negate officers' entitlement to privacy on the job. Police who use dash cameras must alert drivers that they are being taped, he said.

As Graber's case moves forward, civil libertarians are concerned about its implications in light of what happened to John McKenna, an unarmed University of Maryland student who was beaten in March by three police officers after the school's basketball victory over Duke. Police initially charged McKenna and another student with assaulting mounted police and alleged his injuries were caused by the horses. After a private investigator working for McKenna's attorney uncovered a video of the incident, the charges were dropped. The Prince George's County prosecutor and the FBI have since launched investigations.

If people who videorecord police are successfully prosecuted, even if they capture misconduct, the evidence they gathered is not admissible in court.

A judge could still dismiss the case against Graber at a hearing scheduled for October. But Rocah said it might be too late because "the message of intimidation has already been sent."

Graber told Miller that he is afraid of police now and so nervous driving that he has put his motorcycle up for sale.



tl;dr

-Staff Sergeant Graber was driving home on I-95, speeding and doing wheelies on his motorcycle.
-He was pulled over by a police officer in plain clothes who, before ever identifying himself as an officer, was waving around his pistol.
-Staff Sergeant took the ticket and then placed a motorcycle cam video on Youtube.
-The police said that this video violated wiretap laws and used it as a motive to raid his house and [s]steal[/s](confiscate) his computer, camcorder, and flash drives.


---

This is ridiculous. I know there are two sides to every story, but what possible reason could they have to take all this stuff other than spite?

The cop had every right to pull him over and maybe he was wrong for pulling out his weapon. I don't care about all that. The issue is using wiretap laws to punish this person for his freedom of speech... then again are youtube videos covered by the first ammendment?

[Freedan]

Quote:

If people who videorecord police are successfully prosecuted, even if they capture misconduct, the evidence they gathered is not admissible in court.

Exactly what the cops want. Unchallenged power. They can never be nailed for abusing their authority because people aren't allowed to get evidence of it.

Police conversations with citizens are not private. The Miranda warning tells people that anything they say can be used against them. Obviously, it's being recorded. That is not private.

So if the conversation isn't private, why should the cops be exempt from having what they say and do recorded? No one is supposed to be above the law.

[Jason Tandro]

Excellent point, Freedan.

[psychokind]

in germany, it's forbidden to use recordings of conversations in front of court, if the other one didn't knew he was recorded.

[SoulBlazerFan]

Freedan wrote:

Quote: If people who videorecord police are successfully prosecuted, even if they capture misconduct, the evidence they gathered is not admissible in court. Exactly what the cops want. Unchallenged power. They can never be nailed for abusing their authority because people aren't allowed to get evidence of it. Police conversations with citizens are not private. The Miranda warning tells people that anything they say can be used against them. Obviously, it's being recorded. That is not private. So if the conversation isn't private, why should the cops be exempt from having what they say and do recorded? No one is supposed to be above the law.

Cops were above the law. Before 1991, cops could get away with just about anything, including murder. Anyone ever seen Unsolved Mysteries? There was this case where a well-liked cop had been killed. The police knew who did it, but couldn't bust him for it.

Well, this guy disappeared, and was found in a vacant lot, dead. He'd been beaten within an inch of his life, and shot to death. Obviously, if there was a criminal investigation, the same cops who could've committed this crime would've been investigating it. Afterall, in their minds, brotherhood is higher than the law.

While that case is extreme and really doesn't prove anything, isn't it true that we have the right to defend ourselves in a court of law, including the use of any materials needed? Because if you catch an illegal act, why should the cops be allowed to arrest you for their crimes? It's outlandish, honestly, and all these cops think their above the law. Back to 1991- The Rodney King case. Cops have been scrutinized ever since then, and their power and authority have diminished passed what they used to be able to do. Go back to the days when law officers like Buford T Pusser (The guy who inspired the original Walking Tall film from the 70's, who beat criminals with a 2x4) to now when they attempt to defend themselves with a punch or a kick and the civies cry foul.

I mean, it's a two way street. There are many bad cops who get away with crimes I imagine, but they are a lot of cops who get the shit end of the stick because of some bull while they were honestly trying to do their job.

[Jason Tandro]

Frankly I think this whole wire-tapping stuff is nonsense anyways. If you don't want to get busted than don't commit crimes. They were in a public place and the undercover cop chose to blow his cover when two uniforms were right behind him. No reasonable expectation of privacy.