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Federal Court Says Massachusetts' Wiretap Law Can't Be Used To Arrest People For Recording Public Officials

from the because-duh-this-was-decided-seven-years-ago dept

Seven years ago, the First Circuit Court of Appeals released its Glik decision. This decision found that recording public officials was protected by the First Amendment, overriding Massachusetts state law. The state wiretap law says recordings must have consent of everyone captured on the recording. The Appeals Court said recording police officers while they performed their duties in public was clearly covered by the First Amendment. The opinion also dealt with some ancillary Fourth Amendment issues, but seemingly made it clear these recordings were protected activity.

The law remained on the books unaltered. Thanks to legislative inaction, the law is still capable of being abused. Since the Appeals Court didn’t declare the law unconstitutional, or even this application of it, it has taken another federal court decision nearly a decade later to straighten this out. (h/t Courthouse News Service)

The ruling [PDF] deals with two First Amendment cases. One deals with activists recording cops. The other deals with another set of activists — James O’Keefe’s Project Veritas — and its secret recording of Democratic politicians. The specifics might be a bit different, but the outcome is the same: recording public officials is protected by the First Amendment. The state law is unconstitutional.

Consistent with the language of Glik, the Court holds that Section 99 may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions.

That just reiterates Glik’s findings. The Massachusetts federal court goes further, though:

The Court declares Section 99 unconstitutional insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions. The Court will issue a corresponding injunction against the defendants in these actions.

The court also points out the state government’s response to the Glik ruling was wrong. The ruling did not limit itself to “openly” recording public officials. It said the First Amendment protected the recording of public officials performing public duties whether or not government officials knew they were being recorded.

In October 2011, the bulletin was accompanied by a memo from the Commissioner citing the Glik decision. The memo instructs officers that “public and open recording of police officers by a civilian is not a violation” of Section 99. The cover memo for the May 2015 recirculation “remind[s] all officers that civilians have a First Amendment right to publicly and openly record officers while in the course of their duties.”

[…]

But Glik did not clearly restrict itself to open recording. Rather, it held that the First Amendment provides a “right to film government officials or matters of public interest in public space.”

The court says siding with the government’s interpretation would just result in more bogus arrests under the state’s wiretap law.

But the training materials go beyond telling officers when it is impermissible to arrest; taking a narrow construction of Glik, they also communicate that it is permissible to arrest for secretly audiorecording the police under all circumstances. In other words, it gives the green light to arrests that, as the Court holds below, are barred by Glik.

This ruling should put an end to that. You’d think the last ruling would have done the job, but despite the Appeals Court never ruling that secret recordings of public officials were illegal, the state decided to interpret the decision this way, leading directly to the lawsuits requiring the record to be set one more time, seven years down the road.

Filed Under: 1st circuit, first amendment, first circuit, free speech, massachusetts, police, politicians, public accountability, recording

First Circuit Appeals Court Latest To Overturn Playpen Suppression Order

from the Rule-41-changes-create-another-foregone-conclusion dept

A third Appeals Court has ruled on the tactics the FBI used to track down users of a dark web child porn site. And the third one to rule — the First Circuit Appeals Court — continues the government’s shut out of suppression orders at the appellate level.

In the two previous cases to reach this level (Tenth and Eighth), the judges found the FBI’s Network Investigative Technique to be a search under the Fourth Amendment. This wasn’t much of an issue because the FBI had a warrant. The real issue was the warrant’s reach: it was issued in Virginia but the NIT found a home in computers all over the US, not to mention the rest of the world.

The lower courts’ decisions ordering suppression of evidence for the use of an invalid warrant have all been rejected by US appeals courts. Good faith has been granted to the agent securing the warrant, thus preventing suppression of evidence. In one case, the court even conjectured the deterrent effect of evidence suppression made little sense now that the FBI has statutory permission to ignore jurisdictional limitations when seeking warrants.

The First Circuit Appeals Court’s decision [PDF] is no different than those preceding it. The previously-granted suppression is reversed and the FBI awarded good faith for its warrant application, which clearly told the Virginia magistrate judge the agency intended to violate the warrant’s jurisdictional limits. This decision, however, limits its discussion to the good faith exception and the judges refuse to draw possibly precedential conclusions about the magistrate judge’s legal authority to grant a “search anywhere” warrant.

The “search anywhere” part of the warrant the lower court found invalid is all academic at this point. Rule 41 jurisdictional limits have been lifted. But that did not happen until after this warrant was procured and deployed. Like the Eighth Circuit before it, the First Circuit decides this after-the-fact rule change somewhat negates the deterrent effect of suppression.

The First Circuit says good faith prevails, as the warrant was more or less explicit in its intentions and still managed to be signed by a judge. In fact, the court praises the FBI for applying for a warrant it likely knew violated pre-rule change jurisdiction limitations.

We are unpersuaded by Levin’s argument that because, at least according to him, the government was not sure whether the NIT warrant could validly issue under Rule 41, there is government conduct here to deter. Faced with the novel question of whether an NIT warrant can issue — for which there was no precedent on point — the government turned to the courts for guidance. The government presented the magistrate judge with a request for a warrant, containing a detailed affidavit from an experienced officer, describing in detail its investigation, including how the NIT works, which places were to be searched, and which information was to be seized. We see no benefit in deterring such conduct — if anything, such conduct should be encouraged, because it leaves it to the courts to resolve novel legal issues.

I guess the court would prefer to tangle with legal issues it hasn’t seen before. This would be one of them — at least in terms of thousands of searches performed with a single warrant from a seized child porn server located in Virginia. The legal issues may be novel but the end result is more of the same: good faith exception granted and the admission of evidence questionably obtained.

Filed Under: doj, evidence, fbi, first circuit, gag order, nit, playpen, suppression order

Appeals Court Reaffirms The Public Has The Right To Record The Police, Except For All The Times When It Doesn't

from the leaving-citizens-to-fight-'reasonable'-arrests-for-obstruction dept

In what is being touted as a victory for First Amendment rights, the First Circuit Court of Appeals has upheld the right of people to record police officers in public. This is nothing more than a reaffirmation of a right citizens already possessed, something that can hardly be considered a victory.

The problem is that, despite this being made clear on multiple occasions, people are still being arrested for recording police officers. Sometimes it’s a bad (and outdated) wiretapping law that gets abused. Sometimes it’s other, unrelated laws that are stretched to fit the circumstances, which means those recording officers are hit with charges ranging from interfering with police investigations to criminal mischief, depending on how the interaction goes.

But this ruling has received lots of press, much of which centers on the positive aspects of the ruling — which, again, must be pointed out only affirms a previously existing right. So, while it’s nice to have a higher-level court confirm First Amendment protections, the fact is that this decision was only made necessary by law enforcement’s arguments to the contrary.

This ruling, unfortunately, is more about the exceptions than the protections, as Scott Greenfield points out.

[T]he opinion, after reaffirming what was already the law, put a lot more effort into the caveat:

“This is not to say, however, that an individual’s exercise of the right to film a traffic stop cannot be limited.”

Boom. There it is, the grand right in a few black letters, and then the lengthy explanation detailing how to circumvent and eliminate it. Thanks for the roadmap, bro.

“Indeed, Glik [v. Cunniffe] remarked that ‘a traffic stop is worlds apart from an arrest on the Boston Common in the circumstances alleged.’ That observation reflected the Supreme Court’s acknowledgment in Fourth Amendment cases that traffic stops may be ‘especially fraught with danger to police officers’ and thus justify more invasive police action than would be permitted in other settings. Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them.”

The word “reasonable” is perhaps the most dreaded word in law. First, it is meaningless, left to the sensibilities of judges to decide and a hole big enough to drive a Mack truck through. Second, whenever we see it, we know it’s the opening through which bad things come. Bad, bad things.

“Reasonable” is one of the government’s favorite words, one that helps carve out privacy protections and pare back the First Amendment right to record cops. “Reasonable” is the amount of effort claimed to be made by an FOIA department as it turns down your public records request. “Reasonable” is the key word propelling the Terry stop, which in some cities has devolved into stop-and-frisk. “Reasonable” is supposedly an objective standard, but one that is constantly defined subjectively by everyone from the beat cop to the judge presiding over the case.

So, the word “reasonable” jumps in with the First Amendment right so recently confirmed and starts punching holes in the protection.

[A] police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.

In plain English, this is what that means.

[Y]ou have the constitutional First Amendment right to record police until they tell you to stop, because reasons, at which point you don’t.

Now, we’re back where we started, even with a recent district court decision. Citizens have a right that doesn’t feel like a right because it can so easily be revoked by an officer reaching a “reasonable conclusion.” This means recordings will still be shut down and those operating cameras arrested. The right, as it exists, will most likely be subject to our country’s favorite remedy: the court system, a long, expensive process that usually begins with an arrest.

That’s not how rights are supposed to work. The exceptions should be few and far between, rather than an incredibly significant part of the whole.

Filed Under: first amendment, first circuit, free speech, police, recording