Privacy and the law

I'm cynically amused by the efforts of law enforcement authorities and the Federal government to argue, on the one hand, that citizens have no expectation of privacy in a public place, and on the other hand, that they and Government officers do have such an expectation.

You've doubtless read about the Justice Department's argument to a Federal appeals court concerning privacy in public.

The Obama administration has urged a federal appeals court to allow the government, without a court warrant, to affix GPS devices on suspects’ vehicles to track their every move.

The Justice Department is demanding a federal appeals court rehear a case in which it reversed the conviction and life sentence of a cocaine dealer whose vehicle was tracked via GPS for a month, without a court warrant. The authorities then obtained warrants to search and find drugs in the locations where defendant Antoine Jones had travelled.

The administration, in urging the full U.S. Court of Appeals for the District of Columbia to reverse a three-judge panel’s August ruling from the same court, said Monday that Americans should expect no privacy while in public.

“The panel’s conclusion that Jones had a reasonable expectation of privacy in the public movements of his Jeep rested on the premise that an individual has a reasonable expectation of privacy in the totality of his or her movements in public places, ” Assistant U.S. Attorney Peter Smith wrote the court in a petition for rehearing.

. . .

The government said the appellate panel’s August decision is “vague and unworkable” and undermines a law enforcement practice used “with great frequency.”

There's more at the link.

Needless to say, I disagree profoundly with the Justice Department's argument. What's so onerous about having to obtain a warrant before initiating such surveillance? Without that safeguard, who knows what abuses of power might take place? (And if you think that such abuses don't happen, go and read the FBI's record of bypassing and/or ignoring US law in its surveillance activities on numerous occasions.)

However, what's sauce for the goose doesn't appear to be sauce for the gander. Numerous law enforcement agencies have harassed members of the public for recording (audio and/or camera and/or video) the former's activities, up to and including bringing charges against them. You'll find many cases documented here.

In one of the most recent cases, Maryland charged a motorist with violating that state's wire-tapping laws for videotaping a state trooper who was arresting him.

That Anthony Graber broke the law in early March is indisputable. He raced his Honda motorcycle down Interstate 95 in Maryland at 80 mph, popping a wheelie, roaring past cars and swerving across traffic lanes.

But it wasn't his daredevil stunt that has the 25-year-old staff sergeant for the Maryland Air National Guard facing the possibility of 16 years in prison. For that, he was issued a speeding ticket. It was the video that Graber posted on YouTube one week later -- taken with his helmet camera -- of a plainclothes state trooper cutting him off and drawing a gun during the traffic stop near Baltimore.

In early April, state police officers raided Graber's parents' home in Abingdon, Md. They confiscated his camera, computers and external hard drives. Graber was indicted for allegedly violating state wiretap laws by recording the trooper without his consent.

Arrests such as Graber's are becoming more common along with the proliferation of portable video cameras and cell-phone recorders. Videos of alleged police misconduct have become hot items on the Internet. YouTube still features Graber's encounter along with numerous other witness videos. "The message is clearly, 'Don't criticize the police,'" said David Rocah, an attorney for the American Civil Liberties Union of Maryland who is part of Graber's defense team. "With these charges, anyone who would even think to record the police is now justifiably in fear that they will also be criminally charged."

More at the link.

Fortunately, a Maryland judge today threw out the wire-tapping charges.

A Harford County Circuit Court judge Monday dismissed wiretapping charges against Anthony Graber, a motorcyclist who was jailed briefly after he taped a Maryland state trooper who stopped him for speeding on I-95. Graber used a camera mounted on his helmet, then posted the video on YouTube.

In April, a few weeks after the traffic stop, Harford County state's attorney Joseph I. Cassilly charged Graber, a staff sergeant in the Maryland Air National Guard and a computer systems engineer, with violating the state's wiretapping law. That law dates back to the 1970s and was originally intended to protect citizens from government intrusions into their privacy. If convicted on all charges, Graber faced up to 16 years in prison.

Judge Emory A. Pitt Jr. had to decide whether police performing their duties have an expectation of privacy in public space. Pitt ruled that police can have no such expectation in their public, on-the-job communications.

Pitt wrote: "Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. 'Sed quis custodiet ipsos cutodes' ("Who watches the watchmen?”)."

Graber was also charged with possessing a “device primarily useful for the purpose of the surreptitious interception of oral communications" -- referring to the video camera on his helmet. The judge disagreed with the prosecutor that the helmet cam was illegal, and concluded the state's argument would render illegal “almost every cell phone, Blackberry, and every similar device, not to mention dictation equipment and other types of recording devices."

Once again, more at the link.

We owe Judge Pitt a debt of gratitude for enforcing common sense over an overweening, power-hungry authority structure that sought to intimidate through prosecution, rather than acknowledge the indefensibility of its officer's actions. Unfortunately, there are too many such agencies - and officers - out there. They tarnish the good name of the worthy officers who serve us in law enforcement, and are an embarrassment to their agencies. One hopes that this ruling, plus cases such as the Washington GPS tracking incident, will clarify the extent of our right to privacy in public, and uphold our Constitutional protection against unlawfully intrusive investigation.

Peter