Massachusetts Woman Charged With Recording Her Own Arrest
The Springfield Republican reports that police accused Karen Dziewit of drinking outside a building at about 2 a.m. Sunday. She’s also accused of yelling and disturbing residents and refusing to quiet down.
When the 24-year-old Dziewit was about to be arrested, police say she activated her smartphone recording feature, hid it in her purse and recorded her arrest.
“Outside a building” — in other words, in public. She didn’t need permission to record anything.
Dziewit was charged with unlawful wiretapping, disorderly conduct and an open container violation. She’s due to be arraigned in Springfield District Court on Monday.
Wiretapping? For making a cell phone recording, on a public street? What wire was tapped?
David says
In Massachusetts, it is technically illegal to record a conversation without the consent of all parties. The U.S. Court of Appeals for the First Circuit not long ago clarified the First Amendment right of individuals to videotape police (or anyone else) in public, in the performance of their duties. But that case did not address the question whether doing so secretly – i.e., with a hidden recording device, as opposed to doing so in an open and obvious way – is entitled to similar First Amendment protection. Maybe it is, and maybe the wiretap charges will eventually be dismissed in this case. (I suspect they will – sounds like they have other reasons to charge her). But I’m not sure the courts have yet addressed that exact situation.
JimC says
Isn’t that trumped by the fact that this was in public? If you’re strolling down Boylston Street, I do not need permission to film you.
Hell, until recently I could even upskirt you.
David says
to which I am not 100% sure of the answers. I believe (but am not certain) that the wiretapping law (which is here, for the curious) is limited to speech, and does not encompass visual images. I believe (but am not certain) that, even if you are recording conversations on a public street, the law still applies, and if you end up “secretly recording” a conversation (because, say, you are walking behind people who are talking loudly enough for your cell phone to pick it up) without their consent, you may have committed a crime.
Of course, there is a First Amendment overlay here, which is what the case I linked above concerned. Some activities that fall within the statute are nonetheless permissible because the First Amendment guarantees them. But the line is not an easy one to draw.
HR's Kevin says
Is it ok to record as long as people know they are being recorded or is consent also necessary?
howlandlewnatick says
Do these views constitute wire-tapping? Drones?
“There are only two choices: A police state in which all dissent is suppressed or rigidly controlled; or a society where law is responsive to human needs. If society is to be responsive to human needs, a vast restructuring of our laws is essential.” –William Orville Douglas
David says
government surveillance cameras would be within the statute’s law enforcement exception. Private surveillance is a tougher question. And, as noted above, I believe (but am not sure) that only speech is covered – visual images seem not to be.
David says
to which I’m not totally sure of the answer. The statute seems to make it a crime to “secretly hear” or “secretly record” a conversation, unless you’ve been “given prior authority by all parties to such communication.” The statute doesn’t seem to define “secretly,” but the ordinary meaning would seem to be “without the other person’s knowledge.” That suggests that knowledge is enough to negate the crime. But if it is, why include the line about being “given prior authority”? So from the face of the statute, it’s hard to say. Certainly, court decisions may have clarified this.
mike_cote says
When the police are caught on tape beating the crap out of someone. Is this going to be a crime as well?
centralmassdad says
This post reminded me of this situation, in which Massachusetts law enforcement made a similar claim. It is not clear to me that they would not seek to prosecute the guy who records the video, but what is at least clear is that once the video is “out there” they cannot force third parties to refrain from distributing it.
Christopher says
IMO there should be no reasonable expectation of privacy when you are doing something outside ESPECIALLY if you are an agent of the state in the performance of your duties.
centralmassdad says
Reasonable expectation of privacy is the thing that protects you from government search, and so isn’t really applicable here.
Rather, the Mass statute that prohibits recording others without their knowledge and consent is the issue. It is a little ugly that this statute is used “on offense” by the police in this manner, but it is not the first time that this position has been taken by the Mass AG or other authorities.
howlandlewnatick says
And they tell us they’re not just thugs in blue…
“When you have police officers who abuse citizens, you erode public confidence in law enforcement. That makes the job of good police officers unsafe.” –Mary Frances Berry
sabutai says
I thought that audio recording was illegal, but visual wasn’t. And I also thought that had been changed. In other news, nice to see you…been a while.
kirth says
Attorney General / Gubernatorial Candidate Martha Coakely should be asked what her position is on this. Maybe she’ll surprise us.
doubleman says
And the AG candidates.
seamusromney says
Coakley has proposed allowing police to do NSA-style surveillance, but remained silent when police arrested a man for publicly recording an arrest that took place in public. This alone should disqualify her from being Governor.
centralmassdad says
Work is busier, and I tend to lose interest in the horse-race, good campaign vs. not a good campaign stuff, which has been in season lately.
Eventually there will be some interesting policy development, and then I will piss my time away again.
Christopher says
If you and I are standing outside chatting we might have some reasonable expectation that our words are not recorded. However I don’t think we can reasonably expect that nobody will see that we are standing around and chatting.