States applying wiretap statutes to personal videos

From the Summer 2010 issue of The News Media & The Law, page 18.

Anthony Graber was on his red Honda motorcycle traveling on Interstate 95 in early March — a bit too fast and popping wheelies, by his own account — when he was cut off by a man in an unmarked gray sedan as he exited the highway. The sedan’s driver, dressed casually in jeans, quickly approached Graber with a gun drawn and ordered him off the bike, only then identifying himself as a Maryland State Trooper. After writing Graber a speeding ticket, he sent him on his way.

That likely would have been the end of the matter if Graber hadn’t had a small camera mounted on his motorcycle helmet, which he used to record the traffic stop and post a video of the incident on YouTube. Shortly thereafter, police officers raided the home where Graber was living with his parents, seizing computers, a camera and other equipment. The 25-year-old staff sergeant in Maryland’s Air National Guard was then arrested and jailed, accused of violating the state’s wiretapping statute, which requires the consent of all parties before recording a conversation. Violations of the statute are felony offenses, punishable by up to five years in prison and a $10,000 fine.

Though a June editorial in The Washington Post called Graber’s prosecution “absurd” and USA Today described it as an “abuse of prosecutorial authority” there are 11 other states that, in addition to Maryland, require the consent of all parties for a recorded conversation to be legal. A motorist similarly situated in California, Connecticut, Florida, Illinois, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania or Washington could face the same fate.

Graber’s case, along with a string of similar situations around the country, underscores the potentially sweeping impact of these laws, which were passed long before cell phones came with video cameras and recordings could be posted within minutes on the Internet — and long before CNN, local newscasts and newspaper websites published and used recordings from citizens and amateur journalists.

The trend worries civil libertarians, civil rights groups and media organizations, which have raised questions about whether such wiretapping statutes can apply to conversations involving public officials that could otherwise reveal fraud and misconduct.

“I think that in this modern age where everyone has a ‘felony machine’ in their pocket — a cell phone — the [all-party] consent law is outdated,” said David Rittgers, an attorney and legal policy analyst at the Cato Institute in Washington.

Cases brought based on all-party consent clauses in wiretapping statutes can arrive at different outcomes — even in the same state. In Maryland, for example, State’s Attorney Joe Cassilly is going forward with charges against Graber in Harford County. The state attorney in nearby St. Mary’s County, however, decided to dismiss charges against a woman who had been charged after recording a police officer using her cell phone. Cassilly says that police officers should be able to consider their conversations private unless there is a clear expectation otherwise, differentiating between confrontations that occurred in private and those readily observed by bystanders.

“If a cop starts screaming at a guy at the top of his lungs and draws a crowd by the way he’s behaving, that’s one thing,” Cassilly said. “I guess the question is: can people overhear you,” he said. If not, then there is an expectation of privacy, he argued.

Critics say Cassilly’s interpretation of what is considered a private conversation is far too broad. Police officers have no expectation of privacy when making a traffic stop on a public roadway, said David Rocah, an attorney with the American Civil Liberties Union of Maryland who is helping to represent Graber.

Even if Graber is convicted, Rittgers said he believes the verdict will almost certainly be thrown out on appeal because though Graber’s interaction with the police officer was not observed, it could have been easily overheard by any motorist who happened to pass by at the time he was pulled over.

Courts have frequently held that there is no violation of the law when the parties have no reasonable expectation of privacy. An appellate court in California ruled in 1999 that there was no violation of a wiretapping law when two Dateline NBC producers used a hidden camera to record a conversation that took place on a crowded outdoor restaurant patio. “NBC photographed the two men in a public place and taped their conversations which were about business, not personal matters,” the court stated.

Nevertheless, there is disagreement among courts about whether the all-party consent exception applies to the recording of an on-duty police officer. The felony charges against a New Hampshire man were dropped in 2006 after he used a home security camera to record a police detective questioning the man’s son about a robbery. In Pennsylvania, the district attorney in Cumberland County decided in 2007 to drop a felony wiretapping charge against a man who began recording after a police officer pulled over his friend. An Illinois artist wasn’t as lucky — a judge there recently rejected a motion to dismiss an eavesdropping charge against him after he recorded his arrest for selling $1 artwork in Chicago without a license.

Legal experts disagree on what impact wiretapping laws could have on journalists going forward, although many note that police could have a much harder time arguing an expectation of privacy when the media is involved.

Robb Harvey, a media lawyer based in Tennessee, said he expects that in the coming years more citizens will be arrested for recording police officers and that journalists won’t be immune. “The sheer fact that so many people have mobile recording devices suggests we will see more charges,” he said.

Ohio media lawyer Richard Goehler predicted that law enforcement will be reluctant to take on news organizations in order to avoid a media circus, but still advised journalists who want to record police to identify themselves as a member of the media, stay on public property whenever possible and to stay out of the way. “You can [face] a real big problem if law enforcement can make the case that your newsgathering activities harm their investigation,” Goehler said.

Harvey said that if journalists are approached by a law enforcement official and asked to leave, they should obey the order but retreat with the camera rolling. Reporters should not turn over newsgathering equipment to police, he said. Instead, the situation should be resolved later by police supervisors and newsroom managers. But the important thing is to use discretion, since every situation is different.

While journalists, state legislatures and courts sort out the meaning of wiretapping statues, the case against Graber is going forward. He is now free on bond after turning himself in a week after the raid on his parents’ house and spent 26 hours in jail. He is scheduled for trial in October in the Harford County Circuit Court.

Though Graber is no longer giving interviews about his case on the advice of his attorneys, in an April interview with Miami journalist Carlos Miller, Graber said the situation had changed his life — he no longer rides his motorcycle and plans to sell it.

“I’m now afraid of the police — afraid of what they can do to me,” Graber said. “I’ve never been arrested in my life before this.”