Court Tosses Bogus Wiretapping Charge Against Man Who Recorded Cops Who Raided His House

For many years, law enforcement agencies used (mostly outdated) wiretapping laws to justify arrests and prosecutions of citizens who recorded them during their public duties. For a long time, they succeeded, with Illinois seeing a great many of these thanks to its (unconstitutional) law. That law has since been nullified by the courts, but there are still a few legacy laws out there being abused to shut down recordings of police officers.

Another win has arrived for citizens who play an key part in the law enforcement accountability process. Photography Is Not A Crime reports that New Hampshire native Alfred Valentin has had wiretapping charges against him dismissed. Incredibly, New Hampshire prosecutors tried to use another state's law (via an appeals court decision) against Valentin in hopes of getting the charges to stick.

In an attempt to convict the Manchester man, prosecutors tried to take advantage of the Massachusetts wiretapping law, which is different than New Hampshire’s law.

In Massachusetts, the wiretapping law criminalizes all secret recording of conversations, even those that take place in public.

The prosecution claimed that Valentin secretly audio recorded two Manchester police sergeants by holding his phone by his leg, although it apparently wasn’t so secret that the cops didn’t notice.

The events leading to the failed prosecution of Valentin began with a no-knock raid by Manchester's SWAT team. Valentin had taken in a roommate who, unbeknownst to him, was currently under investigation for heroin trafficking. While Valentin was at work, the police raided his house, firing incendiary devices through his windows and seizing his home security cameras.

Valentin was summoned home by a neighbor who had found his dog wandering the streets. When he arrived, he was greeted by plainclothes officers who refused to identify themselves. The officers refused to show him a search warrant, telling him to "come back in an hour" when a supervisor would be there. Valentin returned to see the supervisor (and warrant) and began recording his interactions with the officers. The officers responded by arresting him for violating the state's wiretapping law.

This arrest was followed up by the police department issuing a press release falsely stating Valentin had been arrested in connection with a heroin trafficking investigation. In fact, he was never a suspect and was never charged with any drug-related violations. Because of this bogus press release, Valentin lost his job. He is now suing the involved officers for over $1 million, citing a list of constitutional violations and libel-related complaints.

The prosecutors invoked Massachusetts law by way of the First Circuit's Glik decision -- one that found citizens have a First Amendment right to record public servants in any area that does not carry a "reasonable expectation of privacy." The New Hampshire court quotes this part of the Glik decision:

"[T]he First Amendment protects the filming of governmental officials in public spaces .... "

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs."'

The state prosecutors, however, focused on this part of the decision.

The State contends the U.S. Court of Appeals for the First Circuit in Glik and Gericke "found that, in the absence of a statutory exception, the First Amendment to the Federal Constitution does not protect an individual who intercepts public officials' oral communications unless ... the act of recording is done openly."

The officers spotted the cellphone, leading to Valentin's arrest, so it seems unlikely he wasn't "openly" recording them. Valentin maintains he was holding the phone at chest level, which would have made it even more apparent he was holding a recording device. No matter which version of the events is accurate, the placement of phone bears no weight on the court's decision.

The State's representation of Glik and Gericke is manifestly incorrect. The question of "openness" did not enter into the First Amendment analysis in either case. In Glik, the plaintiff brought First and Fourth Amendment claims against Massachusetts following an arrest under Massachusetts' wiretap statute for recording police.

In its First Amendment analysis, the Glik Court wrote, "(i]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative." Glik later suggests that the First Amendment does not protect filming that interferes with police duties. The Court, however, explicitly declined to specify further limitations stating, "[t]o be sure, the right to film is not without limitations… We have no occasion to explore those limitations here, however." Likewise, Gericke allows for reasonable restrictions on the right to record police, but never discusses whether such recordings must be open.

The Glik decision's question of "openness" only applies to alleged Fourth Amendment violations. The state then argued that both issues must be tied together, because if a secret recording is permissible under the First Amendment then the resulting arrest would be a Fourth Amendment violation. The state argues that both cannot be simultaneously true. The court points out the flaw in this analysis.

If the First Amendment protects secret recordings, the State argues, there could have been no probable cause to arrest the plaintiff, and so the Court would have had no reason to decide whether the recording was secret. To the contrary, the fact that a criminal charge violates the First Amendment does not mean that the arrest underlying the charge violates the Fourth Amendment. Thus, the Glik's analysis about whether the recording was secret for Fourth Amendment purposes does not show that secret recordings are beyond the First Amendment's protection.

[...]

As such, absent contrary authority from the State, the Court finds that the First Amendment protects secretly filming police in public, for the same reasons that the First Amendment generally protects filming police. The public has the right to gather and disseminate information about the police.

Officers can secretly record citizens in public areas and vice versa. Public areas carry very limited expectations of privacy and any privacy protections that might be implicated are dramatically decreased for public servants performing their duties in public areas. No relevant court decision says otherwise. There is no statutory requirement that citizens inform public servants that they are being recorded in these situations.

With this out of the way, Valentin should be able to proceed with his lawsuit. Violation of his First Amendment rights has been determined by this dismissal. This will allow him to focus on the other constitutional violations listed in his suit, as well as the alleged libelous statements that cost him his job.

Permalink | Comments | Email This Story

Sheldon Whitehouse Freaks Out, Blames 'Pro-Botnet Lobby' For Rejecting His Terrible CFAA Amendment

As we mentioned yesterday, one of the (many) bad things involved in the new Senate attempt to push the CISA "cybersecurity" bill forward was that they were including a bad amendment added by Senator Sheldon Whitehouse that would expand the terrible Computer Fraud and Abuse Act, a law that should actually be significantly cut back. Senator Ron Wyden protested this amendment specifically in his speech against CISA. And, for whatever reason, Whitehouse's amendment has been pulled from consideration and Whitehouse is seriously pissed off about it.

He went on the Senate floor to directly whine about it, even sarcastically calling out the "hidden pro-botnet, pro-foreign cyber criminal caucus" that somehow fought against the bill. Except it wasn't a "pro-botnet" anyone who killed the amendment. It was a lot of people who were quite reasonably concerned about what the amendment would do to the CFAA. And while it's true that Whitehouse improved the amendment from its originally really terrible state, it still was a bad amendment. Whitehouse goes on and on in has rant about who could possibly be "against" shutting down botnets or raising penalties for hacking into critical infrastructure, citing that "law enforcement" supports the bill. But, of course, that leaves out the other side entirely. And that's not the "pro-botnet, pro-foreign cyber criminal" caucus, but rather people who are well aware of how the CFAA has regularly been abused by law enforcement to bring charges against non-criminals, or to pile on charges on those committing minor offenses. Expanding all of that without stopping the potential for abuse only means the bill will be abused further.

Whitehouse continues to make a name for himself as one of the most technologically illiterate members of the Senate. Late last year he went on a rant about a totally made up Google search (the results did not show what he claimed they showed) and an equally made up Pirate Bay whose actual site did not show what Whitehouse pretended it showed. He also was strongly in favor of backdooring encryption, arguing that if Apple doesn't backdoor encryption, perhaps it will be opening itself up to a lawsuit when the FBI can't track down a kidnapper (ignoring all the times that such encryption would actually protect people). This push to expand the CFAA and then whining about pushback on the Senate floor is only adding to his reputation as one of the most anti-tech industry Senators out there.

And, of course, for all the show on the floor, it's not like the Amendment is dead anyway. As Marcey Wheeler notes in her post (linked above), there's still a good chance that his CFAA amendment will be brought back into the bill when the House and Senate conference to resolve differences in the bills across houses.

Permalink | Comments | Email This Story

Awesome Stuff: Everything On One Display

It's an age-old symbol of tech dismay: a dozen interconnected devices, a dozen remote controls, all failing to work smoothly with each other. This week, we're looking at a device that aims to sort out some of the mess when it comes to video: Skreens, a robust HDMI input mixer aimed at streamers and heavy media users.

The Good

Juggling multiple video devices is no picnic. Even having multiple windows open on a desktop or laptop is less than ideal, and once you bring in external devices other than general purpose computers, things get even tougher, leaving you with little option but to split your attention between multiple displays. Skreems offers another option: it takes two or four HDMI inputs (depending on the model), and lets you arrange them as you see fit and send them all to a single output. Sports on the left, Twitter feed on the right? No problem. Want to watch a movie, play Xbox, and use Skype all at once? Just drag and drop the three separate screens into your desired configuration and fire it up. It all runs through one compact box and is controlled by a separate app, which can also serve as a universal remote control. Skreens has the potential to be a complete solution to most multiple-media-device woes.

The Bad

Skreens comes in four models: the two-input and the four-input version, each with both a regular and pro model. That makes perfect sense until you take a closer look at the specs, and notice that they've made one very unfriendly choice: the pro models, which come with an extra $100 on the price tag, don't actually include any superior hardware — they just have some extra unlocked capabilities. In other words, it appears the non-pro models are capable of letting you do absolutely everything the pros are, but some of those features are artificially restricted, such as advanced video quality settings and the aforementioned universal remote capabilities. This sort of artificial limitation benefits nobody, and it's just begging to be circumvented — though we'll have to wait and see if the people behind Skreens make an effort to stop people from doing so. It's a shame that half of the models of this otherwise-impressive device have been intentionally hamstrung in order to push people into spending more.

The Performance-Friendly

Of course, part of the reasoning behind this is clearly that the creators see their biggest potential market among online streamers, and are hoping those increasingly-professional ranks will be willing to spend the extra bucks. And it's true that Skreens looks like a pretty exciting tool for people who stream their gaming sessions online, since they are usually either stuck with the limited options provided by a gaming console or various PC apps that add an extra software burden to their gaming rig. Skreens opens up lots of new possibilities for streaming gamers, and I suspect we'll see it being used to widen the possibilities for just what you can stream to Twitch or the new YouTube Gaming, beyond the now-standard "webcam feed in the top corner" configuration. Livestreaming is a rapidly growing entertainment sector with an already-massive audience, and Skreens has a shot at becoming a standard piece of every streaming gamer's setup — even with the unfortunate premium price tag on the pro models.

Permalink | Comments | Email This Story

SalesForce Says It Doesn't Support CISA After Signing Letter That Suggested It Did

One of the issues with various "cybersecurity information sharing" bills like CISPA from last year and CISA from this year, is that some tech companies have been (quietly) supportive of these bills. The whole focus of these bills is to encourage "cybersecurity information sharing" between private companies and the government. And, in theory, that may sound like a good thing. In reality, all the bills really do is focus on protecting companies from liability should they share private information they shouldn't have shared. And, of course, there's the fact that people who understand these things recognize that there's a hidden meaning behind CISA, in that it's really designed to give the NSA more "signatures" to use in its surveillance dragnet.

But, of course, for many companies, the bill just looks like a "get out of court free" bill -- because the entire focus is on protecting those companies from liability. Some companies take a more long-term, customer- or public-centric view of things and recognize all this, and have not supported CISA. Others, however, have been more supportive. A few weeks ago, the BSA -- which is really the Business Software Alliance, but refers to itself as The Software Alliance -- sent a letter to Congress outlining some of the issues that its members were supporting. This included a bunch of reasonable and good things, like much needed ECPA reform. However, it also included this:

Cyber Threat Information Sharing Legislation will promote cybersecurity and protect sensitive information by enabling private actors in possession of information about vulnerability and intrusions to more easily share that information voluntarily with others under threat, thus enabling the development of better solutions faster.

Now, it's notable that this line does not directly endorse CISA. And it's pretty clear that's on purpose. Of the bullet points in the letter three of the other four all name specific bills that the letter is supporting. Leaving out specific support of CISA is an interesting choice and at least indicates some hesitancy among some of the companies signing onto the letter to actually support CISA in its current form.

Of course, the problem is that, right now, there are no real alternatives being offered, and politicians who support CISA can and will point to this letter to argue that "the tech industry supports CISA." And, with that in hand, the good folks at Fight for the Future kicked off a campaign called YouBetrayedUs.org, calling on the companies who signed the letter -- including Apple, Microsoft, Adobe, Symantec, Salesforce.com, Oracle and more to renounce the letter itself.

It appears that they've claimed their first scalp, as Salesforce.com has issued a press release saying they do not support CISA and have never supported CISA. The quote is from the company's chief legal officer, Burke Norton, who is the same representative who signed the letter:

“At Salesforce, trust is our number one value and nothing is more important to our company than the privacy of our customers' data,” said Burke Norton, chief legal officer, Salesforce. “Contrary to reports, Salesforce does not support CISA and has never supported CISA.”

And here he is on the letter: Again, it's absolutely true that the letter did not directly support CISA. And it could have. As mentioned, most of the other bulletpoints list out bills by name and/or number. But the one on cybersecurity did not. Of course, one might argue that the BSA did this on purpose, knowing that if it cited CISA by name, all hell would rain down on them from the public.

Either way, perhaps this should act as a clear warning to tech companies that do want to support CISA. The public isn't going to like it very much. Similarly, this should provide further notice to companies in signing these kinds of letters that they should understand what it appears they're supporting as well.

Permalink | Comments | Email This Story

The new art of war: How trolls, hackers and spies are rewriting the rules of conflict

Cyberwar isn't going to be about hacking power stations. It's going to be far more subtle, and more dangerous.

Techdirt Podcast Episode 41: Privacy Policies Have Nothing To Do With Privacy

Privacy policies are ubiquitous online, and often required by law, but what are they really for? People don't read them, and when they do, they have a tendency to misunderstand them -- such as with the recent flare-up over poorly-contextualized changes to Spotify's policy. Plus, there's a built-in incentive for companies to write their policies as broadly as possible to avoid accidentally violating them, further stripping them of all purpose. This week, we discuss a simple question: are privacy policies an altogether stupid idea?

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Permalink | Comments | Email This Story