Wiretapping // Current TV

Police fight cellphone recordings - Charge owner with illegal surveillance

Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three police officers struggling to extract a plastic bag from a teenager’s mouth. Thinking their force seemed excessive for a drug arrest, Glik pulled out his cellphone and began recording.

Within minutes, Glik said, he was in handcuffs.

“One of the officers asked me whether my phone had audio recording capabilities,’’ Glik, 33, said recently of the incident, which took place in October 2007. Glik acknowledged that it did, and then, he said, “my phone was seized, and I was arrested.’’

The charge? Illegal electronic surveillance.

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.

“The police apparently do not want witnesses to what they do in public,’’ said Sarah Wunsch, a staff attorney with the American Civil Liberties Union of Massachusetts, who helped to get the criminal charges against Surmacz dismissed.

Boston police spokeswoman Elaine Driscoll rejected the notion that police are abusing the law to block citizen oversight, saying the department trains officers about the wiretap law. “If an individual is inappropriately interfering with an arrest that could cause harm to an officer or another individual, an officer’s primary responsibility is to ensure the safety of the situation,’’ she said.

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 statute has been misconstrued by Boston police,’’ said June Jensen, the lawyer who represented Glik and succeeded in getting his charges dismissed. The law, she said, does not prohibit public recording of anyone. “You could go to the Boston Common and snap pictures and record if you want; you can do that.’’Continued... at link:Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three... more

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EFF Challenges Government's 'Back Door Wiretap'

Urges Court to Rule Email Privacy Is Constitutionally Protected

Cincinnati - The Electronic Frontier Foundation (EFF) and other civil liberties groups filed an amicus brief in Warshak v. United States urging the 6th U.S. Circuit Court of Appeals Wednesday to hold that the government's seizure of email without a warrant violated the Fourth Amendment and federal privacy statutes, as well as the Justice Department's own surveillance manual.

During its criminal investigation, the Department of Justice illegally ordered defendant Stephen Warshak's email provider to prospectively "preserve" copies of his future emails, which the government later obtained using a subpoena and a non-probable cause court order. The government accomplished this "back door wiretap" by misusing the Stored Communications Act (SCA), which is only supposed to be used for obtaining emails already in storage with a provider.

In Wednesday's filing, EFF argues that the government's seizure violated federal privacy laws and Warshak's Fourth Amendment expectation of privacy in his email. As a result, the illegally seized emails should have been suppressed by the district court where Warshak was tried. All told, the government acquired over 27,000 emails spanning over six months from Warshak's email provider, all without probable cause.

"The Justice Department not only violated the Fourth Amendment and federal privacy statutes but its own surveillance manual when it conducted this 'back door wiretap' to intercept six months worth of emails without a warrant," said EFF Senior Staff Attorney Kevin Bankston. "Thankfully, this abuse has given the appeals court yet another opportunity to clarify that the Fourth Amendment protects the privacy of email against secret government snooping, even when it's in the hands of an email provider."

EFF filed a similar amicus brief with the 6th Circuit in 2006 in a civil suit brought by Warshak against the government for its warrantless seizure of his emails. There, the 6th Circuit agreed with EFF that email users have a Fourth Amendment-protected expectation of privacy in the email they store with their email providers, though that decision was later vacated on procedural grounds.

"The government's illegal email surveillance in this case raises troubling questions about how often the Justice Department has bent the law or broken it outright in other criminal investigations," said Bankston. "This 'back door wiretap' is yet another demonstration of why Congress must update the federal surveillance statutes to require comprehensive reporting on how the government is using its spying authorities."

The amicus brief was also signed by the ACLU of Ohio and the Center for Democracy and Technology.

For the full amicus brief:
http://www.eff.org/files/filenode/Warshak_EFF_Amicus_Brief.pdfUrges Court to Rule Email Privacy Is Constitutionally Protected Cincinnati - The... more

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Obama’s First 100 Days: Worse Than Dissapointing?

Before the media starts in on their assessment of the first 100 days, I thought current could take a stab at it first.
Do you think Obama accomplished good things in his first 100 days? Do you feel mislead by expectations of what he would accomplish?

I tend to fall in the middle, but Prison Planet points out some things that may not be what we were expecting of Obama, and will probably not make the mainstream summation of his first 100 days.

They ask:

- Will Obama support Dennis Kucinich’s efforts to bring war crimes charges against Bush, Cheney and others for deceiving the country into a war or will he protect them against such charges like Nancy Pelosi has done?

- Will Obama bring war crimes charges against Bush, Cheney and others for authorizing torture and will the torture of suspects under U.S. detention, a complete violation of both the Constitution and the Geneva Conventions, cease under an Obama administration?

- Will Obama withdraw American troops from Iraq and Afghanistan without sending them away again to bomb another broken-backed third world country?

- Will Obama end the warrantless secret surveillance and phone-taps of American citizens?

- Will Obama cease his support for the Bush-administration backed banker bailouts, hated by the majority of Americans, and target the real cause of the problem - the Federal Reserve - or will he continue to give taxpayers’ money to banks who are merely hoarding it all for themselves?

- Will Obama repeal Patriot Acts I and II as well as reversing Bush’s signing statement and acknowledging the repeal of the John Warner Defense Authorization Act? Will Obama seek to continue the militarization of America and preparations for martial law through Northcom and the secret government or will he dismantle the police state that has been constructed over the last eight years by the Bush administration?

- Will Obama follow through on his rhetorical support for the second amendment or will he seek to ban guns as he did in Illinois?Before the media starts in on their assessment of the first 100 days, I thought... more

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