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Fazor
2009-Sep-10, 03:53 PM
Here's a "Hot-button" case I stumbled upon, and as always, was very interested to hear the opinions of the BAUT community. Here's the article (http://www.metrowestdailynews.com/news/x1467270710/Police-say-irate-car-dealership-customer-recorded-altercation).

Fazor's summary:

A Massachusetts man, unhappy with the service he was receiving from his auto repair shop, caused an incident that escalated to the point where police were called. Police arrested the man after a brief struggle. Upon arrest, police discovered a digital audio recording device in the man's pocket. Among other charges, he has been charged in violation of Massachusetts' Wiretapping and Possession of Wiretapping Tools laws.

Now, here's the law, taken from Article 272 Section 99 (http://www.mass.gov/legis/laws/mgl/272-99.htm) Massachusetts' General Laws. I've shrank the font size to save space in the post, hopefully it's still legible:



Definitions:
2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

Offense:
1. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who—

willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

Proof of the installation of any intercepting device by any person under circumstances evincing an intent to commit an interception, which is not authorized or permitted by this section, shall be prima facie evidence of a violation of this subparagraph.



Basically, Massachusetts is a two-party wiretap state, which means in order for a conversation to be "intercepted" (which includes recording), all parties involved must be aware. One stat I stumbled across said that there's 12 states that have adopted this type of stance towards communications. I don't know how accurate that number is, but can say that Ohio is a single-party system.

The articles I've come across are all very against the state charging this man in violation of this law.

I was going to end with my opinion of this particular case, but instead I think I'll wait and see if any of you would like to discuss it first.

ETA: OOPS, FORGOT TO DO THE LINKS. CORRECTED

SeanF
2009-Sep-10, 04:00 PM
I disagree with the "possession of" charge. Despite the fact that the device he had could be used for such, that is not it's purpose. Millions of people have those recorders, and they can't all be breaking the law.

As for the actual wiretapping law, as long as the state's law is a two-party law, they've got him on that one. I happen to prefer single-party wiretapping laws, but that's just my preference.

tashirosgt
2009-Sep-10, 04:24 PM
I wonder how these laws sort out the recording of internet traffic when that traffic is packets that carry phone calls.

Fazor
2009-Sep-10, 04:37 PM
I disagree with the "possession of" charge. Despite the fact that the device he had could be used for such, that is not it's purpose. Millions of people have those recorders, and they can't all be breaking the law.

Typically "possession" type laws (excluding drug laws), are closely tied to other supporting evidence. Take, for instance, the more common occurance of the man in the back alley of a business at 2am with a crowbar. Based on the situation, and possibly more supporting evidence (observation or physical), possession of criminal tools may be charged. The strength of the charge depends on the strength of other supporting factors.

In the Mass. wiretap case, he used the device for illegal purposes, therefor the supporting evidence is very strong.

SeanF
2009-Sep-10, 04:40 PM
Typically "possession" type laws (excluding drug laws), are closely tied to other supporting evidence. Take, for instance, the more common occurance of the man in the back alley of a business at 2am with a crowbar. Based on the situation, and possibly more supporting evidence (observation or physical), possession of criminal tools may be charged. The strength of the charge depends on the strength of other supporting factors.

In the Mass. wiretap case, he used the device for illegal purposes, therefor the supporting evidence is very strong.
Fair enough.

BTW, from reading that law, I can only conclude that "Candid Camera"-type hidden camera tricks are illegal in Massachusetts...

Fazor
2009-Sep-10, 04:53 PM
Fair enough.

BTW, from reading that law, I can only conclude that "Candid Camera"-type hidden camera tricks are illegal in Massachusetts...

I sure wouldn't try it.

I also wonder if one can piggyback off of the other party's disclosure, in a full-party state. For instance, when I was having trouble with a creditor trying to collect on a bogus debt, they start with "before we start, you need to be aware that this conversation may be monitored or recorded blah blah blah". Can *I* then record the conversation aswell, for my own personal records? Of course, if they're calling me, in Ohio, from a single-party state, then it wouldn't matter either way. But if they're calling from one of these states, do I specifically have to disclose that there's a second recording, if they already know they're recording? Hmm. . . but I digress

Fazor
2009-Sep-10, 06:26 PM
I guess I can go ahead and add the (much anticipated, I'm sure) Fazor's Opinion (tm) to the thread:

I think the charges are good charges, in that they fit. He committed the defined crime. Remember, ignorance of the law is not a defense from it.

I think they should have charged him with these crimes (as they did).

I also think that, once the prosecutor gets the case, these charges should not be pursued further.

The police officer's job when making an arrest is to document the pertinent charges. They can and do use discretion when filing these charges. The man resisted arrest. Many are claiming the cops only threw these charges at him because of that. They may well be correct, in part. But it's not a personal, vindictive move by the police. He made the situation more serious by resisting arrest. One way to portray how serious the incident was is the apply more charges. That way, when it goes to court, maybe the judge, prosecutor, and/or jury can see that it was more than just a frustrated customer who lost his temper.

The disruption of business, disorderly conduct, and resisting arrest related charges will be sufficient. But including the wiretapping charges gives a fuller picture of the situation.

The other reason I don't think the wiretapping charges need to be pursued is because, though in violation of the law, I don't see where any harm has been caused. Not that lack of harm excuses breaking the law. But the importance of punishment is significantly less if there is injured party. In other words, it does not hurt anyone to decline pursuit of these charges.

Gillianren
2009-Sep-10, 06:39 PM
So let me make sure I'm reading this correctly. The man was charged with wiretapping/possession of wiretapping tools for recording a conversation in person? That doesn't make sense to me. Over the phone, okay, I guess--certainly I can see the need for a "one party" law in that case, obviously, but in person?

Fazor
2009-Sep-10, 06:46 PM
So let me make sure I'm reading this correctly. The man was charged with wiretapping/possession of wiretapping tools for recording a conversation in person? That doesn't make sense to me. Over the phone, okay, I guess--certainly I can see the need for a "one party" law in that case, obviously, but in person?

Ah, but you need read the linked law. Wiretapping in Mass. encompasses both conversations over wire (internet, phone, two cans and a string), and oral communication. Both are spelled out specifically.

Though calling the law "wiretapping", rather than something like "Interception of Communications" was probably not the clearest of titles. That's law for you.

Gillianren
2009-Sep-10, 07:55 PM
Ah, but you need read the linked law. Wiretapping in Mass. encompasses both conversations over wire (internet, phone, two cans and a string), and oral communication. Both are spelled out specifically.

No, I did read the law. I still just think it's silly.


Though calling the law "wiretapping", rather than something like "Interception of Communications" was probably not the clearest of titles. That's law for you.

Yes, well. The thing is, though, a lot of places where this would still technically be illegal are places where a person should have no reasonable expectation of privacy. So I don't know how that ties in.

Fazor
2009-Sep-10, 08:05 PM
Yes, well. The thing is, though, a lot of places where this would still technically be illegal are places where a person should have no reasonable expectation of privacy. So I don't know how that ties in.

To be honest, I didn't read through the entire section of Mass code. Ohio's specifically mentions a reasonable expectation of privacy.

In part, that is supported by Ohio's definition of "listening device" which includes wordage along the lines of "device that amplifies ability to receive audio signals (excluding hearing aids meant to bring sub-par hearing up to "normal" levels), allowing for a listener to hear things that otherwise would not be possible." (my clumsy version, as opposed to the million times clumsier leagalese version in the O.R.C.)

If you've ever seen those commercials for devices that allow you to "hear far away!", you've seen a product that --at least in Ohio-- is illegal for most of the uses demonstrated in said commercials.

Of course, one could argue that secretly recording a conversation IS indeed breaking reasonable expectation of privacy -- even if I'm in a shouting argument with a customer at my public place of business, anything I say I reasonably expect to only be heard by those within earshot -- not by someone else at some unknown time and location after the conversation had occured.

novaderrik
2009-Sep-10, 08:19 PM
so when the cops send in someone that is wearing a wire to bust up a drug ring, any evidence they gather via that wire is inadmissible in court unless the guy wearing the wire says "hey, got any pot or coke or meth or whatever? oh, and by the way, i'm recording this"?
or how about those people that use their cell phone camera to secretly record the cop when they get pulled over for a traffic stop? a lot of people do that these days.

SeanF
2009-Sep-10, 08:20 PM
so when the cops send in someone that is wearing a wire to bust up a drug ring, any evidence they gather via that wire is inadmissible in court unless the guy wearing the wire says "hey, got any pot or coke or meth or whatever? oh, and by the way, i'm recording this"?
Of course not!


...provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication...
Cops are special!

Fazor
2009-Sep-10, 08:23 PM
Cops are special!

Why thank you! Oh, what about trained but never in practice cops? :)

Anyway, yes, the law specifically excludes law enforcement.

Gillianren
2009-Sep-10, 08:31 PM
Of course, one could argue that secretly recording a conversation IS indeed breaking reasonable expectation of privacy -- even if I'm in a shouting argument with a customer at my public place of business, anything I say I reasonably expect to only be heard by those within earshot -- not by someone else at some unknown time and location after the conversation had occured.

One would be arguing badly, I suspect. (Geonuc?) Someone could be recording something else in the vicinity and happen to catch your diatribe. Someone could be filming something else, ditto. No, you have no real reason to expect that, but you certainly have a reason to expect that those within earshot may well remember what you said and, theoretically, tell other people about it. It's not a he said/she said at that point, which it would be with a telephone call. Certainly any of those witnesses could be called up in court, should it for some reason end up in court.

Fazor
2009-Sep-10, 08:55 PM
All I can add is that, from what I recall, Ohio's "Reasonable Expectation of Privacy" in these regards are pretty well defined. But they do lean more towards your point of view than my theoretical argument.

As Massachusetts' law is written, I think the charge fits. That doesn't mean I think it's written well (many laws aren't.)

tdvance
2009-Sep-10, 09:03 PM
it's a convoluted issue, starting some decades ago when police tapped--I think it was a payphone--and caught some criminals doing business on that phone. It made it to the supreme court--the state argued the signal was on the wire where anybody could get it, it wasn't seizure since the signal was only recorded, not actually prevented from reaching its destination, and not search, since the wire went across public property, but the supreme court ruled that it was an unreasonable search because there was "an expectation of privacy" or a phrase similar to that.

Now, given that everywhere you go, people have cellphones with cameras in them, is there an expectation that you will not be recorded? One party states (I THINK Maryland is one of them) answer that, hey, if you're talkin' to me, you obviously don't expect it to stay secret! What's wrong with backing it up with a little proof? Other state laws are based on the philosophy the "expectation of privacy" also includes the "expectation of no privacy, but at least it is still plausibly deniable".

Now, I guess, as the law is written, the man is in violation, but I don't like that. I think there is a role in society for this kind of thing--I mean, either that or put ropes around the necks of people in power to "keep them upright", as Mark Twain once said.

Fazor
2009-Sep-10, 09:12 PM
Now, I guess, as the law is written, the man is in violation, but I don't like that. I think there is a role in society for this kind of thing--I mean, either that or put ropes around the necks of people in power to "keep them upright", as Mark Twain once said.

That's a perfectly valid opinion. My problem is, if you read the articles related to this incident, people are crying out against law enforcement (the cops). That's the wrong thing to target. They have to uphold the laws -- in fact, not doing so is in and of itself illegal.

It's okay if this incident elicits dissatisfaction or outrage over the law. The cops aren't the ones that made the law though. Don't take it out on them. Pressure your state to change the law.

HenrikOlsen
2009-Sep-10, 10:13 PM
We have a somewhat similar situation in Denmark currently where the politicians, in an attempt at stopping stabbings in the Copenhagen night life enacted a very strict law that made it criminal with a near-mandatory 7 days in prison to have a knife with a blade longer that 2" or so.

Now there's been three cases of innocent people(technically in violation of the law, but not having the knives to use against people, all three had the knives in their cars, two used then for work, one had been fishing and forgot to get the knife out afterwards) who's had their lives ruined by the law.

This has naturally made the politicians rage against the police and prosecution instead of actually admitting that it's their own badly considered actions that ruined those people's lives.

The ones shouting the loudest are the party who had wanted it to be 30 days:(

Tog
2009-Sep-10, 11:16 PM
I'm with Fazor on this one, but then we seem to agree on these sorts of things a lot. The way the law is written, the man should be charged with it.

I disagree with the wording of the law, however. I'm not a big fan of the idea that both parties need to be aware of the recording. If it turns out that he was being taken advantage of by the car dealership, but was told that without proof, nothing could be done, he'd have to get the proof in some way. The law doesn't seem to provide for any legal way to do that.

Things like this, and Henrik's knife story are things that I feel should be secondary offenses. That is, technically illegal, but not the sole casue for arrest. I carry a set of lockpicks in my computer bag. I don't use them as often in the hotel as I did in the grocery store, but I've used them in front of police officer that I didn't know before with no issues. Technically, I am in possession of burglar's tools, but I wouldn't be charged with it unless it was a secondary aspect to a crime. If I'm opening the locked closet in a friend's house, it's not a crime, if I'm opening the locked front door of a liquor store, it is.

Same thing with the knife. the standard Swiss Army Knife has a main blade that is 3 inches long. Too long to be legal in Henrik's area, but virtually useless as a weapon. If that knife were carried into a store, it should not be a crime. If that knife were used in a crime, then the additional charge should be added.

Gavia
2009-Sep-10, 11:58 PM
If you've ever seen those commercials for devices that allow you to "hear far away!", you've seen a product that --at least in Ohio-- is illegal for most of the uses demonstrated in said commercials.

I've seen adverts for these parabolic reflector thingies that you can use to listen to bird calls in the field. I wonder if those are illegal.

In general, does the form of the technology matter? In a situation where it is illegal to record a conversation on a tape recorder, would it also be illegal to write down a conversation and recite it later verbatim? Or suppose I had a really good memory and could do really good impressions. (Both are false, but never mind that.) Would my ears, brain, and tongue together constitute an illegal recording device?

Tog
2009-Sep-11, 12:15 AM
Welcome to the forum. Be sure to hit up the FAQ link at the top and read the rules. Some things are a bit different here.


I've seen adverts for these parabolic reflector thingies that you can use to listen to bird calls in the field. I wonder if those are illegal. Not as long as you only use it for birds. Just as there is no law against owning a digital recorder. It only becomes illegal when it's used to eavesdrop on a private conversation.


In general, does the form of the technology matter? In a situation where it is illegal to record a conversation on a tape recorder, would it also be illegal to write down a conversation and recite it later verbatim? Or suppose I had a really good memory and could do really good impressions. (Both are false, but never mind that.) Would my ears, brain, and tongue together constitute an illegal recording device?

The quoted law says a device that can record. Technically, you could transcribe something, or remember it verbatim, but it's not a recording in the sense of the word we're talking about here. writing something down introduces a human element that could be either wrong, or intentioanlly altered. It couls still be used, but it won't carry anywhere near as much weight as an actual recording made with some sort of recording device.

Fazor
2009-Sep-11, 01:28 AM
I've seen adverts for these parabolic reflector thingies that you can use to listen to bird calls in the field. I wonder if those are illegal.

To be clear, listening devices and audio-boosting devices aren't illegal in and of themselves. Using them to "overhear" a conversation that someone with "normal" hearing wouldn't otherwise hear, is. At least in Ohio. And from what I read, Massachusetts.

Chuck
2009-Sep-11, 02:36 AM
Eventually everyone will have brain implants that record what we see and hear. Everything you let someone see or hear will be recorded automatically. Resistance is futile.

HenrikOlsen
2009-Sep-11, 09:25 AM
I won't.

Tog
2009-Sep-11, 09:43 AM
Eventually everyone will have brain implants that record what we see and hear. Everything you let someone see or hear will be recorded automatically. Resistance is futile.

That was the premise of the film The Final Cut, which was one of the Films that Robin Williams did recently that cast him in a darker role than his normal manic comic style.

The chips were considered a luxury item, and after death they were removed and an edited video of that that person's life could be made for the family.

I actually really liked the movie.

Ara Pacis
2009-Sep-11, 10:59 PM
I also wonder if one can piggyback off of the other party's disclosure, in a full-party state. For instance, when I was having trouble with a creditor trying to collect on a bogus debt, they start with "before we start, you need to be aware that this conversation may be monitored or recorded blah blah blah". Can *I* then record the conversation aswell, for my own personal records? Of course, if they're calling me, in Ohio, from a single-party state, then it wouldn't matter either way. But if they're calling from one of these states, do I specifically have to disclose that there's a second recording, if they already know they're recording? Hmm. . . but I digress

I don't know, but I don't think it should make a difference. knowledge that the conversation is being recorded should be sufficient. It's not like they have to consent to it. If they didn't consent, they could hang up. I had that conversation with a landlord one time when someone else was harassing me with phonecalls.

Actually, now that I think about it, some of those customer service calls might be in violation. They often say that the conversation might be recorded, not that it is being recorded. I wonder if any lawyer or judge has tried to split that hair.

tdvance
2009-Sep-11, 11:15 PM
That was the premise of the film The Final Cut, which was one of the Films that Robin Williams did recently that cast him in a darker role than his normal manic comic style.

The chips were considered a luxury item, and after death they were removed and an edited video of that that person's life could be made for the family.

I actually really liked the movie.


Also a recurring theme in Alastair Reynolds's books. But in his, on one planet, a nanotech plague (think--a computer virus with a lot in common with the biological kind) took control of implants and melted quite a few brains. Luckily, there were back alley surgeons who could remove them, with promises like "I only kill one in 20 patients!"

tdvance
2009-Sep-11, 11:16 PM
ok--I got off topic--forgot we were talking specifically "recording" implants--they did a lot of things, and I'm sure recording was among them.

Chuck
2009-Sep-12, 02:49 AM
That was the premise of the film The Final Cut, which was one of the Films that Robin Williams did recently that cast him in a darker role than his normal manic comic style.

The chips were considered a luxury item, and after death they were removed and an edited video of that that person's life could be made for the family.

I actually really liked the movie.

I'll have to watch it. Robin Williams tends to be a little silly so I don't watch many of his movies.

Tog
2009-Sep-12, 08:58 AM
I'll have to watch it. Robin Williams tends to be a little silly so I don't watch many of his movies.
In some of recent ones, he was not only not really silly, but the Bad Guy.

In Insomnia (http://www.imdb.com/title/tt0278504/) he plays a serial killer in northern Alaska. Robert DeNiro is flown up to try to catch him, but can't sleep due tot he fact that it's never really dark. He loses all sense of time. It was written by the guy that wrote Memento, but I didn't think it was anywhere near as good.

In One Hour Photo (http://www.imdb.com/title/tt0265459/) he plays a clerk at a one hour photo stand that becomes obsessed with a family based on the picture they bring in to have developed. A pretty decent psych thriller.

In The Night Listener (http://www.imdb.com/title/tt0448075/) he plays a radio show host that ends up talking to a severely abused boy that has AIDS. As the story progresses, there is some doubt whether the boy is real, or just an act put on by the woman that is supposed to be his guardian. I thought it was based on a true story, but IMDB says nothing about it. I recall it being good but not having much of an ending.

geonuc
2009-Sep-12, 11:48 AM
One would be arguing badly, I suspect. (Geonuc?) Someone could be recording something else in the vicinity and happen to catch your diatribe. Someone could be filming something else, ditto. No, you have no real reason to expect that, but you certainly have a reason to expect that those within earshot may well remember what you said and, theoretically, tell other people about it. It's not a he said/she said at that point, which it would be with a telephone call. Certainly any of those witnesses could be called up in court, should it for some reason end up in court.
There may well be Massachusetts or federal court decisions that interpret the law to restrict application to those instances where there is an expectation of privacy.

Chuck
2009-Sep-12, 03:40 PM
In some of recent ones, he was not only not really silly, but the Bad Guy.

In Insomnia (http://www.imdb.com/title/tt0278504/) he plays a serial killer in northern Alaska. Robert DeNiro is flown up to try to catch him, but can't sleep due tot he fact that it's never really dark. He loses all sense of time. It was written by the guy that wrote Memento, but I didn't think it was anywhere near as good.

In One Hour Photo (http://www.imdb.com/title/tt0265459/) he plays a clerk at a one hour photo stand that becomes obsessed with a family based on the picture they bring in to have developed. A pretty decent psych thriller.

In The Night Listener (http://www.imdb.com/title/tt0448075/) he plays a radio show host that ends up talking to a severely abused boy that has AIDS. As the story progresses, there is some doubt whether the boy is real, or just an act put on by the woman that is supposed to be his guardian. I thought it was based on a true story, but IMDB says nothing about it. I recall it being good but not having much of an ending.

I guess I'll have to reconsider some of his work, although these three aren't the kinds of movie I usually watch.

Gillianren
2009-Sep-12, 06:35 PM
Let me second One Hour Photo. Insomnia, I'll get back to you in a few weeks.

Oh, and thank you as always for your expertise, Geonuc.