It’s an oldish story, but I just recently ran across it:

According to the New Hampshire Union Leader (via Slashdot), police in the town of Weare charged a man with unlawful “interception of oral communications” – a felony* – because he used his phone during a traffic stop. According to police, the call was a crime because the driver ended up leaving a message, so they claim that the voice-mail service on the other end of the call recorded the officer’s communications without his consent.

That is, they charged him with wiretapping because the officer’s voice could be heard in the background of his phone call.

The story gets mildly less ridiculous when you read the background. Basically, the guy was leaving a meeting of libertarians and the phone call was to the voicemail of said libertarian group, which has been in trouble with the police before on similar(ly specious) “wiretapping” grounds. So, in a real sense, it may have been an end-run around the provisions preventing people from recording interactions with the police. If one believes that it is beyond the pale to record a police officer, this makes a degree of sense.

That’s a big “if”, of course. As mentioned before, the arguments against being able to record police encounters is dubious. Especially since they regularly record their interactions with us.

More broadly, though, I think that the entire notion of recording our experiences is questionable. I can see some reasons for it, like sex tapes or something where we want a strong expectation of privacy. Even then, I wonder if the videotaping itself should be illegal so much as any distribution of said recording. Sex tapes (unless released by mutual consent of all involved – and maybe even then) are distasteful, but one can think of scenarios where a “sex tape” is a defense against accusations of rape.

I’m not sure that I shouldn’t be able to have a camera and microphone in my classes at all time so that I could, if needed, go back and account for my time.

Delosa has pretty loose against wiretapping, at least as far as audio goes. Basically, as long as one participant in the conversation is aware that it’s being recorded, it is a legal recording. So you can’t stick a bug in someone’s apartment and listen from afar, but you can carry a wire on your person. That’s my understanding, anyway, and that strikes me as about right.

But even if you don’t agree with going that far, it’s a no-brainer when it comes to police. They are encouraged to record their interactions with you. The expectation of privacy is minimal or non-existent. The primary issue is who gets the recording. The notion that it should be the police, and only the police, is pretty suspect on its face.

* – The charge was later reduced to a misdemeanor.


Category: Courthouse

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4 Responses to “Wiretapping”, Cntd

  1. Kevin says:

    Most states’ laws on taping conversations are like that. If you’re a participant in the conversation, you can record it. Where it gets really murky is when it’s not clear whether you’re a participant (ever been unannounced on a conference call) or where the conversation is between people in two different states.

  2. trumwill says:

    I guess that could be murky, though it seems to me that if you’re not saying anything, you’re not really participating. Then again, if it should be legal to have a wire on you at all times (and I think it should), you’re going to collect a lot of conversations that you’re not really participating in.

  3. Mike Hunt says:

    one can think of scenarios where a “sex tape” is a defense against accusations of rape.

    One can do better than just think of scenarios. In 2004 some St John’s basketball players were exonerated after a woman cried rape after a consenual sexual excounter. Why did she cry rape? Because the players didn’t pay her the money they promised her.

    Note to women… After the deed is done, you don’t get to change your mind and withdraw consent. It doesn’t matter how much of an a-hole the guy turns out to be. Chalk it up to a learning experience and move on.

    This is why women are generally not believed when they say they are raped by someone they knew beforehand.

    ===

    Regarding police officers… Unless they are in a situation where they are expecting privacy, such as in a locker room or a bathroom, they should act as if everything they are saying or doing is being recorded. This goes for public employees in general.

  4. trumwill says:

    Note to women… After the deed is done, you don’t get to change your mind and withdraw consent.

    Yet!

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