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    New England Center for Investigative Reporting: Police fight cellphone recordings

    The New England Center for Investigative Reporting has an interesting story about police arresting individuals who record officers’ actions while they are on-duty and in public.

    Jon Surmacz, 34, experienced a similar situation. Thinking that Boston police officers were unnecessarily rough while breaking up a holiday party in Brighton he was attending in December 2008, he took out his cellphone and began recording.

    Police confronted Surmacz, a webmaster at Boston University. He was arrested and, like Glik, charged with illegal surveillance.

    There are no hard statistics for video recording arrests. But the experiences of Surmacz and Glik highlight what civil libertarians call a troubling misuse of the state’s wiretapping law to stifle the kind of street-level oversight that cellphone and video technology make possible. […]

    In 1968, Massachusetts became a “two-party’’ consent state, one of 12 currently in the country. Two-party consent means that all parties to a conversation must agree to be recorded on a telephone or other audio device; otherwise, the recording of conversation is illegal. The law, intended to protect the privacy rights of individuals, appears to have been triggered by a series of high-profile cases involving private detectives who were recording people without their consent.

    In arresting people such as Glik and Surmacz, police are saying that they have not consented to being recorded, that their privacy rights have therefore been violated, and that the citizen action was criminal.

    The Center notes that, since a Supreme Judicial Court ruling in 2001, “the outcome of Massachusetts criminal cases involving the recording of police by citizens has turned mainly on this question of secret vs. public recording.”

    Peter Lowney, 39, a political activist from Newton, was convicted of illegal wiretapping in 2007 after Boston University police accused him of hiding a camera in his coat during a protest on Commonwealth Avenue.

    Charges of illegal wiretapping against documentary filmmaker and citizen journalist Emily Peyton were not prosecuted, however, because she had openly videotaped police arresting an antiwar protester in December 2007 at a Greenfield grocery store plaza, first from the parking lot and then from her car.

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