Archive for the ‘police’ Category

City of London Police Hijacking Websites Without Court Orders

Thursday, October 10th, 2013

Some scary news out of London. The City of London Police has a new Intellectual Property Crimes Unit, and they are demanding – without a court order – that domain registrars shut down websites and redirect traffic to commercial websites that seem to be affiliated with the companies that made the triggering complaints to the police.

EasyDNS’s Mark Jeftovic – one recipient of these demands – is fighting back. He’s posted Whatever Happened to “Due Process” ? on EasyDNS’s blog.

Among the good points he makes:

Who decides what is illegal? What makes somebody a criminal? Given that the subtext of the request contains a threat to refer the matter to ICANN if we don’t play along, this is a non-trivial question. Correct me if I’m wrong, but I always thought it was something that gets decided in a court of law, as opposed to “some guy on the internet” sending emails. While that’s plenty reason enough for some registrars to take down domain names, it doesn’t fly here.

We have an obligation to our customers and we are bound by our Registrar Accreditation Agreements not to make arbitrary changes to our customers settings without a valid FOA (Form of Authorization). To supersede that we need a legal basis. To get a legal basis something has to happen in court.

(Emphasis and links omitted.) He also makes this point:

What gets me about all of this is that the largest, most egregious perpetrators of online criminal activity right now are our own governments, spying on their own citizens, illegally wiretapping our own private communications and nobody cares, nobody will answer for it, it’s just an out-of-scope conversation that is expected to blend into the overall background malaise of our ever increasing serfdom.

By the way, the City of London Police is the smaller of two police forces in London. The other is the Metropolitan Police. The City police are responsible for the smaller and older portion of London that is referred to as “the City,” which includes the center of the finance/banking industry as well as many of the major law firms. The Houses of Parliament, Buckingham Palace, and most of the rest of what you think of as London is outside the City and under the jurisdiction of the Metropolitan Police.

More:

Snowed Over by a Driving Ban?

Sunday, February 10th, 2013

Snow piled up along Somerville Street in Somerville, Mass. on February 9, 2013, the day after a massive snowstorm prompted state officials to issue a state-wide driving ban. (Photo by Darcy, via Flickr)

The blizzard travel ban in Massachusetts I blogged about was lifted yesterday after 24 hours, according to announcement on the front page state’s emergency management agency.

If you are a blogger or citizen journalist who was cited, arrested or hassled by police in Massachusetts or elsewhere during the big blizzard this weekend, please let me know – I’d love to blog about what happened to you.

If you are an attorney representing a citizen journalist or blogger who is facing a fine or jail time for having driven during a weather-induced travel ban which had an exception for news media, I’d love to talk to you as well.

There was no official press release from the governor’s office providing official notice of the lifting of the ban, nor, apparently, is there a superseding executive order.

About the photo: “Somerville Street in Blizzard Nemo” by MoreLife81 / Darcy, licensed under Creative Commons Attribution 2.0 Generic (CC BY 2.0) license.

U.S. v. Michael Upholds Indictment for Facebook Threat to Police

Wednesday, October 17th, 2012

Venkat Balasubramani at Technology & Marketing Law Blog has a good analysis of U.S. v. Michael, (S.D. Ind., Oct. 9, 2012), a case which rejected a Facebooker’s attempt to dismiss an indictment for threatening posts directed at the DEA. (That’s “Drug Enforcement Agency” for our overseas readers). Read Balasubramani’s post for background. Here I want to add my opinion.

I agree with Balasubramani that there has been “a disturbing number of cases that involve criminal liability for these types of statements posted online.”

But I’m less troubled by the indictment in this particular case.

Here’s what Michael posted to Facebook, broken down:

These guys will get whats coming to them … My master assures me that the DEA will be exterminated and humiliated before the end is over …

No true threat there. It sounds like Michael is “threatening” the DEA with the a return of Christ. That’s not a real threat, and it should be protected speech. Next:

WE R COMING FOR YOUR PIG ASS. The only thing the DEA knows how to do is lie and deceive … Its time we answered there crimes with bloodshed and torture.

We are getting closer to a true threat here. But nonetheless, I think that this is sufficiently general that it should be protected speech. For most crazy anti-law-enforcement speech, including the above statements, I think the correct response – and the one the law ought to sanction – is to get a warrant and monitor the person. But then there’s this:

I’ll kill whoever I deem to be in the way of harmony to the human reace … Policeman all deserve to be tortured to death and videos made n sent to their families … BE WARNED IF U PULL LE OVER!! IM LIKE JASON VOORHEES WITH A BLOODLUST FOR PIG BLOOD.

This is where I think we have something that the government ought to be able to prosecute. Michael has indicated a desire to kill a law enforcement officer at a traffic stop. That is something that could happen instantly, without further warning. And while the feds might be monitoring Michael and thus would not be caught flatfooted, a local police officer might not be. Using threat laws prophylactically to take a person off the street under such circumstances seems to me a reasonable means to avoid a tragedy. Moreover, the speech value of this particular language is low.

Threats directed at the government ought to be accorded more tolerance than threats directed at a private person. For a private person, the threat itself can constitute a significant psychological harm. When it comes to threatening speech directed at the government, I am more comfortable if threat laws are used in a preventative capacity.

Admittedly, threat laws are not closely calibrated to a preventative role. Once the threat is dissipated, the conviction will remain. Threat laws punish speech. And that being the case, I continue to find them concerning. But their application in this circumstance, at least, seems appropriate to me.

By the way, I had to look up Jason Voorhees. He’s the hockey-mask wearing Jason from the Friday the 13th movies. I guess I’m out of it – at least when it comes to 1980s-spawned horror franchises – but I, personally, was thrown off by the use of his last name.

Practical Advice for Protest Reporting from Web Chat with Law and Journalism Experts

Friday, August 17th, 2012

I attended yesterday’s web chat about reporting at political convention protests. The chat,
sponsored by Harvard’s Citizen Media Law Project, the International News Safety Institute, and the Free Press organization, was chock full of practical advice served up with a generous helping of what-it’s-like personal accounts.

Natasha Lennard, who has worked for the New York Times and now writes for Salon.com, described how she was among 700 people kettled and arrested in the Occupy Wall Street protests. She said that for the NYPD, if you are in the wrong place, it doesn’t matter if you are press.

“If you stick with the crowd which is what you feel you should do to get the story, you end up in a very precarious situation yourself,” Lennard said.

Andy Sellars, an attorney with Harvard Law School’s Berkman Center, made the point that when the police are ordering people to move, it helps in many cases to self-identify as a member of the press, but it might make reporting more difficult as you may wind up getting moved far away from the action.

For unaffiliated citizen journalists, Sellars said that it may be a good idea to use a homemade credential. But he warned not to copy anyone else’s credentials. Using credentials intended to look like they were issued by the police, for instance, may be unlawful in itself and, at any rate, is likely to make you a special target of for officers.

John Knefel, an independent journalist who has a radio show with his sister on Radio Dispatch, described his arrest at Occupy Wall Street. After being thrown to the ground, he was arrested and held for about 37 hours.

It was an ordeal, and Knefel singled out New York’s jail food for special scorn. While the arrest didn’t deter Knefel from attending and reporting from events, he said, it make him less likely to rush to a specific location where arrests were happening.

“Clearly it’s meant to have a chilling effect,” Knefel said. “That’s the goal here. It’s to make activists want to stay home. It’s to make journalists want to not cover things or to not cover them as directly or as intimately as they may want to.”

With a view toward the upcoming major-party political conventions in Charlotte, N.C. and Tampa, Fla., Sellars noted that local laws prohibit certain items. In Florida, prohibited items include tripods and bipods. There are also prohibitions on glass, ropes, and masks.

Natasha Lennard’s practical advice included going the site early to give yourself an internalized map of the relevant portions of the city. Knowing what side street you can duck into could help you avoid getting stuck, she said. She also rattled off a list of items to bring with you. She recommended packing milk of magnesia for cleaning away pepper spray, a bike helmet to wear if the batons come out, a bandana to pull out in the case of tear gas, and a lawyer’s phone number – inked on your forearm.

Lennard noted that you should not expect your cell phone to work if things get heated. Cell sites could get overloaded precisely when you most want to make a call or get information out.

Another web chat on the same topic is scheduled for Thursday, August 23 at 8 p.m. Eastern. To attend, go to the Free Press website. You don’t need to sign up in advance.

CMLP Hosting Talk on Reporting at the Political Conventions

Wednesday, August 15th, 2012

CMLP logoThe Citizen Media Law Project has announced that its Digital Media Law Project, along with the International News Safety Institute and an organization called “Free Press,” will be hosting live web chats about legal issues involved in doing reporting/blogging at protests of the Republican and Democratic national conventions. The talks will be tomorrow, August 16 at 7 p.m. (I’m guessing that means Eastern Time), and then again next Thursday, August 23 at 8 p.m.

CMLP notes that almost 90 people have been arrested in the United State while doing reporting at protests. The webcasts will include journalists relaying their personal experiences, presented along with legal analysis.

It’s free and there’s no advance signup necessary. Go to the Free Press website to participate.

Court Declares Unconstitutional Illinois Law Against Taping of Police

Thursday, May 10th, 2012

The Chicago Federal Center, home to the Seventh Circuit (Photo: EEJ)

From a press release from the Reporters Committee for the Freedom of the Press:

The Seventh U.S. Circuit Court of Appeals stood up for the public’s right to be informed about the actions of public officials Tuesday when it declared unconstitutional provisions in the Illinois wiretapping law that prohibits audio recording of police activity in public places.

The Reporters Committee for Freedom of the Press had argued in a friend-of-the-court brief to the Chicago-based court that the overbroad law was a danger to journalists’ and the public’s First Amendment rights.

“This decision is a First Amendment slam-dunk. The court could not have been clearer about the importance of protecting the public’s right to observe and record the actions of public officials in public places,” said Reporters Committee Executive Director Lucy A. Dalglish. “Although Chicago police had indicated they would not enforce the law during the NATO Summit later this month – which we all expect will be accompanied by protests and police activity – it’s nice to have the force of the court’s decision on the right to record those events.”

“The notion that audio recording police activity in a public place, where there is no expectation of privacy, constitutes a felony is absurd and advances absolutely no government interest,” Dalglish added. “We are delighted that the appeals court agreed.”

One little nit: I don’t understand where they get “Seventh U.S. Circuit Court of Appeals” from. The full name is the United States Court of Appeals for the Seventh Circuit. So you can shorten it to the U.S. Seventh Circuit Court of Appeals, if you like, but it makes no sense to put the “U.S.” between “Seventh” and “Circuit.” It’s kind of like putting something between “United” and “States.” Okay, I guess it’s not that bad. But it’s wrong.

Links:

Free Webinar from RCFP on Covering Protests

Saturday, May 5th, 2012

Reporters Committee for Freedom of the Press logoThe good folks at the Reporters Committee for the Freedom of the Press are putting on a free webinar for reporters and photographers who are covering events, such as protests, where they could be blocked from reporting or detained by the police. Examples include the Occupy protests as well as the upcoming political conventions in Charlotte and Tampa. Or, you know, if you are in Los Angeles, your local elementary school science fair.

The one-hour webinar will be held May 9, 2012 from 1:00 p.m. EDT. (That’s 12 noon Central, which is my time zone and the time zone where the next big opportunity for reporter-police interaction will be: Chicago, May 20-21, for the NATO Summit.)

The webinar will be lead by Lucy Dalglish, RCFP Exec Director and Gregg Leslie, Legal Defense Director. It looks like they will be giving both a theoretical perspective on where your journalist rights come from as well as practical advice on what to do when confronted or detained by the police.

Excellent stuff! I am signed up and looking forward to it.

To reserve your own place:

https://www4.gotomeeting.com/register/941031095

Review of a Review of 2011

Monday, January 9th, 2012

2011As Blog Law Blog continues it’s look back at 2011, I’d like to note a very good wrap-up article over at PBS’s MediaShift:

The article covers the principal stories in media law over the past year, and it does a nice job of hitting the important topics, but the legal analysis isn’t always right on. I’ll just look at one example – what the article lists as the number-one topic in media law over 2011: “‘Wiretapping’ the Police.”

“Wiretapping” sounds like it should involve a man in a headset sitting in a van listening in on your telephone calls. But the legal definition is often far broader — as many journalists and ordinary citizens found out after being charged with a felony for simply filming a few seconds of police activity in public.

It’s true that laws against making surreptitious audio recordings do go well beyond classic “wiretapping,” but I’m aware of no law that purports to make criminal “filming” police activity taking place in public. The an Illinois statute mentioned in the article prohibits recording audio of any conversation without the consent of all persons speaking. That was used against someone with a video camera that was also capturing sound, but the case was ultimately dropped, and it’s not clear that any recent prosecutions have happened under similar circumstances.

In general, however, the problem is not laws themselves – the problem is police arresting people for conduct that does not violate any law.

For instance, when attorney Simon Glik used his cell phone to record Boston Police officers arresting a homeless man in a public park, the officers arrested Glik under a law (Mass. Gen. Laws ch. 272, § 99) that prohibits “secretly” recording wire or oral communications. Glik wasn’t being secret. He was recording openly. His conduct didn’t violate the law. The problem there was that police were arresting Glik for doing something that wasn’t against the law. Indeed, the charges were soon dismissed. (Post-dismissal, Glik filed a lawsuit that successfully established constitutional rights to make such recordings as well.)

Another instance of this coming up – not mentioned in the PBS article – was the Baltimore Police’s action against Christopher Sharp, who recorded the arrest and apparent abuse of a woman at the Preakness Stakes. The problem there was not that Maryland law prohibited Sharp’s conduct – it didn’t. The problem was that the police seized Sharp’s cellphone on the spot and deleted a bunch of videos (including personal ones as well as the one of the police). At the time, one police officer made the completely absurd claim that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” But, as I explained, that’s not the law.

That’s why the article kind of misses the point when it says:

The importance of the wiretapping cases cannot be overstated. If the government is permitted to prosecute citizens for collecting and disseminating accurate information about acts of official misconduct, specifically when those acts occur in a public place, both citizen and professional journalism — and by extension the public at large — will suffer greatly.

The problem is not the prosecutions. The prosecutions almost never happen. The problem is the police acting lawlessly on the scene.

CJR: Who’a a Journalist? – NYPD’s Credentialing at Occupy

Wednesday, January 4th, 2012

Columbia Journalism Review
An article by Erika Fry in the Columbia Journalism Review investigates an intriguing question arising out of the police action against people reporting on the occupy protests in New York. With bloggers and other non-traditional reporters seeking to avoid being swept up by the New York Police Department, Fry asks: Who’s A Journalist?

The article’s a great read, and it gets at one of the essential questions of blog law – to what extent are bloggers entitled to be treated by the police and the government like traditional journalists?

The particular object of Fry’s scrutiny is the NYPD’s system for issuing press credentials to reporters. The credentials help in official and unofficial ways, getting reporters access to press conferences and allowing them to avoid hassles at crime scenes and to avoid roundups of crowds. The way the NYPD doles out press credentials has been hotly criticized. But for bloggers, things are, at least, better than they used to be. Fry writes:

Yet this system, backlog and all, is roundly considered by journalists and civil liberty types to be an improvement over the NYPD’s press credentialing process that was in place until 2010, and was notorious for being opaque and inaccessible to bloggers and journalists from nontraditional media organizations—so much so that three men filed a lawsuit against the NYPD for unfairly denying them credentials in 2008. As Gothamist reported at the time, the reforms to the system in 2010 were intended to “help the Police Department modernize the City’s credentialing system to reflect changes to the media industry and, for the first time, expressly incorporate online-only media such as blogs.”

Liberty L.A. Style: Free Speech School or Jail

Tuesday, December 27th, 2011

View of the LA City Hall skyscraper under a blue skyL.A. City Hall (Photo: EEJ)

Jeffrey P. Hermes at the Citizen Media Law Project Blog has spotted a small volcano of irony erupting from Los Angeles: The L.A. City Attorney’s Office has announced that it won’t press charges against Occupy L.A. protesters arrested on low-level misdemeanor offenses if they complete a free-speech course.

But freedom isn’t free: The lessons for the pre-trial diversion program will be supplied by a private-contractor, American Justice Associates, which will charge $355 per person for the course. Checks can be made out to “The One Percent, LLC.”

It’s a move Hermes calls “a dramatic, last-minute effort to win the prize for ‘Most Obnoxious Law Enforcement Tactic of the Year.’” Hmmm. Well put. As he explains:

Let’s reflect for a moment on this one, shall we? … This is, after all, the city that was on the wrong end of a $1.7 million verdict after police assaulted a journalist covering a rally in 2007, and attempted to control coverage of Occupy L.A. by excluding all media except a hand-picked pool of reporters. And let us not forget Special Order No. 11, which among other things directs the LAPD to file a “Suspicious Activity Report” about any photographer who takes pictures “with no apparent esthetic value.”

But there’s another side to this. As a Los Angeles Times article explains, the city wants to save on the expense of prosecuting the hundreds of people it’s rounded up. Fair enough. We all know how California is hurting for money. (Actually, in recent years the office has suffered a 25% budget reduction.)

Look, I think I’ve got an easy fix: Just require Occupy protesters to complete community service by teaching the class themselves, with LAPD higher-ups enrolled as students.

My Citizen Journalism Rights Respected Just Now

Friday, November 18th, 2011

On my drive home here in Grand Forks, North Dakota I came across the scene of a bad car accident. Oldsmobile sedan vs. GMC Jimmy, and everybody lost. I didn’t witness the accident, but I imagine that speeding, ice, and inattentive driving were factors.

I decided to take my citizen-journalist rights for a try-out with my Canon SLR camera with a big 70-200mm telephoto lens. These pictures were taken about 35 minutes ago at about 4:40 p.m. CST. I am very happy to report that police and fire officials treated me courteously.

Car accident scene with firefighters and police officer standing nearby

Blue GMC Jimmy SUV with hood open and severe damage to front driver side

Rights of Photojournalists to Take Photos in Public

Thursday, November 10th, 2011

People who like to take random photos in public places (like these unfortunate ACLU plaintiffs) are subject to harassment by law enforcement. They shouldn’t be. But they are.

While there is a fair amount of material providing general legal guidance focused on the writing side of blogging (such as at CMLP and EFF), there is a paucity of material advising you on what you can and can’t get away with using a camera.

The best resource I’ve found – although about six years old – is this legal memorandum [pdf] from Kurt Wimmer and John Blevins at the law firm of Covington & Burling, done for the National Press Photographers Association. From the memo:

In summary, we find that there is no federal law that justifies the broad prohibitions that are being imposed on photography in public areas. There is no new federal law, including the Patriot Act, that restricts photography of public buildings and installations on the basis of concerns over terrorism. Restrictions of photojournalism that proceed on this basis may constitute violations of journalists’ First Amendment right to gather news.

I’ll think I’ll print out a copy and put it in my camera bag.

More:

ACLU Sues to Stop Sheriff Harassment of Photographers

Wednesday, November 9th, 2011

Mosaic of photographs of random thingsSome of the thousands of photographs I’ve taken which, I am sure, the LASD would consider to be without aesthetic value. (More where those came from on Flickr.)

I’m always taking photos of random things. I think it’s fun. And photos are valuable for illustrating blog posts, among other things.

But a lot of law enforcement agencies consider photography to be a “suspicious activity.” You can be seriously harassed for street photography.

Happily, the ACLU is stepping in to do something about it. The ACLU is now suing to challenge a policy of the Los Angeles Sheriff’s Department that considers as “terrorism-related” the activity of taking “pictures or video footage with no apparent esthetic value, i.e., camera angles, security equipment, security personnel, traffic lights, building entrances, etc.”

If I had a buck for every photo I’ve taken of “security equipment, security personnel, traffic lights, building entrances, etc.,” then I would have a huge wad of cash. Enough to buy a full-frame digital SLR and maybe even get a sweet L-series 400mm telephoto lens.

And I’d run out and use it to take pictures of traffic lights, building entrances, and other stuff like that. And then I’d probably have to call the ACLU for help, because I could get into trouble like their latest plaintiffs Shane Quentin and Shawn Nee.

Quentin was targeted when he was taking photographs of refineries at night in south Los Angeles at night. (I’ve been meaning to do this myself the next time have some extra time down there. The refineries at night are stunning – fortresses of light, flame, fog, and exhaust. Highly photogenic in my book.) Well for his efforts, Quentin was frisked and placed in the back of squad car. He was kept there for about 45 minutes before he was let go.

It could have been me.

Nee’s misadventures are even harder to fathom. LASD deputies detained and searched plaintiff Shawn Nee when he was taking pictures turnstiles at an L.A. Metro station. This gives you an idea of where they were at: They asked Nee if he was planning to sell the photos to al-Qaeda.

Really. I’m not making that up. I mean, not only are they imply that he was in league with al-Qaeda, but that he was doing it for the money.

Then the LASD officers threatened to stick Nee on an FBI “hit list.” Okay, that’s absurd. Everyone who watches USA network knows that the CIA is in charge of assassinating terrorists on U.S. soil. But I digress.

On a separate occasion, sheriff’s deputies ordered Nee to refrain from taking photos along the Hollywood Walk of Fame at the intersection of Hollywood and Vine, outside the W Hotel. I mean, holy heck. If you aren’t safe taking pictures there – smack-dab in the middle of freaking Hollywood – where are you?

You can tell I’m upset. I’m using far too much italics.

The ACLU’s complaint [pdf], unlike this blog post, is a model of legal writing. For one, it’s written with a literary flair, yet it refrains from crossing the line into floweriness. Like this:

Photography is not a crime; it is a means of artistic expression. In public spaces, on public streets and from public sidewalks, no law bars Los Angeles residents and visitors from photographing the world around them, from documenting their own lives or using their lenses to find the sublime in the commonplace.

Nicely said. The complaint also is filled with footnoted references to essays, art reviews, and books. It’s very well-researched. A model pleading. Kudos to the ACLU. What’s more, this is a lawsuit that is badly needed to push back against an unhealthy trend. As the complaint says:

Over the past several years, law enforcement agencies across the country have implemented “suspicious activity reporting” programs, under which officers are trained to report certain categories of behavior believed to be potential indicators of terrorism. Many departments include photography as one such ‘suspicious activity’ that should be reported.

Mickey H. Osterreicher said in a letter to L.A. Sheriff Lee Baca that the aim is to get “at least” the L.A. Sheriff’s Department to revise departmental policy and instruct deputies correspondingly.

“Safety and security concerns should not be used as a pretext to chill free speech and expression or to impede the ability to gather news,” Osterreicher said.

More:

Playing Simon Says: California’s Crazy, Crazy Reader Privacy Act

Tuesday, November 1st, 2011

Electronic Simon game from the 1980sGetting a subpoena is a highly unpleasant experience.

A subpoena is a legal document that commands you to hand over documents or appear someplace at a certain time to answer questions under oath. Subpoenas are necessary to get the business of our civil justice system done, but they can make the IRS seem like an old friend by comparison.

And that makes for what I think is the biggest problem with the Reader Privacy Act, a new California law intended to increase people’s privacy with regard to what books they choose to read. (More problems here and here.) To accomplish this, the new law puts certain requirements on any online “book service” provider (which, oddly, might include a blog) that receives a subpoena seeking information on any of the provider’s readers. The requirements are that before complying with the the subpoena, the “book service” provider must give notice to any reader whose information is sought and/or the provider must make a number of determinations about the legal appropriateness of the subpoena.

So, for instance, a provider covered under the law is not allowed to comply with a qualifying subpoena unless the provider first gives 35-day advance notice to the reader about the reader’s ability to seek a motion to quash the subpoena. §1798.90(c)(2)(B)(iv).

Just think about that for a minute: The subpoena is an order issued by a court commanding a person to do something. But under this new law, a person is prohibited by law from obeying that court order unless and until the person fulfills certain requirements.

You would think, if you got a court order, you’d be safe in obeying it. But not so!

And that’s crazy. That’s more than just crazy. That’s the Crazy Suite at the Hotel Crazy.

But wait, it actually gets crazier.

Under §1798.90(c)(1), it is illegal for a covered “book service” provider to obey a subpoena commanding the disclosure of information to a law enforcement agency unless the law enforcement agency has met two conditions and the court itself has met three conditions. For instance, you can’t obey a subpoena under the law unless the court first “finds that the law enforcement entity seeking disclosure has a compelling interest in obtaining the personal information sought.” §1798.90(c)(1)(B).

Yes, that means it’s illegal for you to do something the court is commanding you to do unless the court made a certain finding before hand. To be quite plain, it is unlawful for you to comply with a court order demanding that you cooperate with law enforcement.

That’s beyond crazy. That’s No. 1 Crazy Street, Crazy City, Crazyland, U.S.A.

The only precedent I can think for whackitude like this is the children’s game of Simon Says. In Simon Says, the leader barks commands preceded by the words “Simon says.” If you obey a command that is not preceded by the words “Simon says,” you’re out.

It’s silly, but that’s what makes it fun. For children. Who are playing.

But it’s not fun for the California legislature to do this. It’s not fun at all.

If the California legislature thinks the courts and the police are out of control, then – I hate to have to point out the obvious here – they can put restrictions on the courts and the police. That only makes sense.

Instead, the California legislature has made it illegal for people to cooperate with the police and the courts when the police and courts are, in the legislature’s judgment, going too far.

But wait. It gets CRAZIER still. Look at this provision:

A provider shall disclose personal information of a user to a law enforcement entity only pursuant to a court order issued by a duly authorized court with jurisdiction over an offense that is under investigation and only if …
[p]rior to issuance of the court order, the law enforcement entity seeking disclosure provides, in a timely manner, the provider with reasonable notice of the proceeding to allow the provider the opportunity to appear and contest issuance of the order.

§1798.90(c)(1)(D).

That’s right: It’s illegal for you to obey the subpoena if the police didn’t inform you of your right to contest the subpoena.

That’s like making it illegal for a suspect to answer questions while in police custody if the police failed to inform the suspect of the suspect’s right to remain silent.

That’s P.O. Box Crazy Crazy Crazy, Crazytown Station, Crazy Valley Acres, California 95814.

Legal Guide to Blogging Occupy

Wednesday, October 19th, 2011


Photo: David Shankbone, CC BY 2.0.

The wonderful folks at the Citizen Media Law Project of Berkman Center at Harvard Law School have put together a guide for citizen journalists covering Occupy Wall Street. They have done a tremendous job of going through the relevant law in a very comprehensive, yet very concise way. And it makes for interesting reading even for those who are not planning to go to Zuccotti Park and blog, tweet, or snap pictures for Flickr.

Among the questions they tackle:

  • Do I have the right to record police action at the protest?
  • Do I have a right to record the protesters?
  • May the police search me?
  • May the police seize my camera and view its contents?

Here are just a few interesting tidbits from the guide:

  • “There is no law in New York that prohibits the publication of private facts about individuals, and so you cannot be sued in civil court for publishing such facts” [Other states are contrary –EEJ]
  • “You might also have a specific First Amendment right to record the activities of the police in public. This right has been recognized in jurisdictions outside of New York, and would trump any state law that would otherwise prohibit such recording. However, no New York court has ruled on the existence of this right.” [Wouldn't it be interesting if Occupy Wall Street forced the issue in this jurisdiction? –EEJ]

UK Anti-Terrorism Law Invoked Against Dad Who FB’d Photo of Daughter Eating Ice Cream in Mall

Tuesday, October 11th, 2011

Four-year-old girl eating ice cream on a seat fashioned like a pink Vespa scooter

The face of terrorism? (Photo: Chris White)

Chris White used his cell phone to take the adorable photo at right of his 4-year-old daughter eating ice cream in the Braehead Shopping Centre in Glasgow, Scotland. And with that, Mr. White took his fateful step toward becoming a terrorist – or so it would seem in the view of authorities who then swooped down on him.

To be entirely frank, I would understand authorities accusing me of terrorism for bringing my 3- and 6-year-old boys into a shopping mall. They go berserk in public spaces. Generally, you can’t capture a non-blurry photo of my boys with a cell phone – they move too fast. Often they are moving fast in a way that constitutes an immediate threat to property and person. But this photo of Chris White’s daughter seems to me to have nothing-to-do-with-terrorism written all over it.

I will let Mr. White explain what happened in his own words:

Walking down the shopping mall a man approached me from behind as I was carrying my daughter in my arms. He came from behind me, cutting in front of me and told me to stop. That was quite a shock as I am wary of people with crew cuts and white shirts suddenly appearing in front of me [Me too. –EEJ], but then realised he was a security guard. He then said I had been spotted taking photos in the shopping centre which was ‘illegal’ and not allowed and then asked me to delete any photos I had taken. I explained I had taken 2 photos of my daughter eating ice cream and that she was the only person in the photo so didn’t see any problem. i also said that I wasn’t that willing to delete the photo’s and there seemed little point as I had actually uploaded them to facebook. He then said i would have to stay right where I was while he called the police …

The older police officer … said that there had been a complaint about me taking photos and that there were clear signs in Braehead shopping centre saying that no photographs were allowed. I tried to explain that I hadn’t seen any clearly displayed signs and that I had taken 2 photos of my daughter. … He then said that under the Prevention of Terrorism Act he was quite within in his rights to confiscate my mobile phone without any explanation for taking photos within a public shopping centre[.] … He then said on this occasion he would allow me to keep the photos, but he wanted to take my full details. Name, place of birth, age, employment status, address. … The police officer also said that the security guard was within his rights to now ask me to leave Braehead Shopping Centre and bar me from the premises which I was happy to oblige.

The UK Prevention of Terrorism Act apparently allows the UK’s Home Secretary or a court to issue a “control order” that can restrict a terrorist suspect’s liberty in various ways, including prohibiting the person from possessing a mobile phone. I don’t see in the act where it allows a police officer to exercise that power on the spot when confronting a person the officer believes to be a suspect. But maybe someone who understands UK law better can chime in on that.

Well, after Mr. White started a Facebook page called Boycott Braehead, the story was picked up by the BBC, and within hours the management of Braehead was apologizing and announcing a change in policy so that people will be able to take photos of friends and family. They are also saying they will implement the change at all 11 centers owned by the same company.

Meanwhile, the Boycott Braehead page has 22,381 likes. Check that: 22,475. (It’s going up as I write this.) Now it’s 22,498.

More:

Judge Posner Worried By Mic-Wielding Bloggers

Tuesday, September 27th, 2011

Hon. Richard A. Posner (Photo: U. Chicago)

Illinois has an eavesdropping and wiretapping statute that prohibits making an audio recording of any conversation without the consent of all persons involved. This applies not only over the phone or in a private place, but even in a public place. And even when the conversation is with public officials concerning a matter of public concern. Violations can be prosecuted as felonies, and civil suits are authorized as well.

If you don’t think that sounds constitutional, I’m inclined to agree. And so is the ACLU, who is suing on behalf of several people arrested for secretly recording on-duty police officers. The civil liberties group is challenging the law in ACLU v. Alvarez.

On appeal to the federal Seventh Circuit, the ACLU faced questioning by a panel that included America’s most famous federal circuit judge, the Hon. Richard A. Posner. His questioning was alarming. Just 14 words into his argument, ACLU lawyer Richard O’Brien was interrupted with this:

“Yeah, I know … But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.”

Huh? Really? Ferreting out public corruption, abuse of power, obstruction of justice by those charged to guard it – all that sounds interesting to me.

Posner proceeded to worry about how striking down the law could aid snooping bloggers:

“Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”

“Is that a bad thing, your honor?”

“Yes, it is a bad thing. There is such a thing as privacy.”

Such a thing as privacy for on-duty police officers? Even when they are in public or interacting with civilians? Gosh, I can’t get behind that.

Justin Silverman at CMLP has an extremely thoughtful post on the matter. He writes, “Posner’s apparent belief that there should be an expectation of privacy for those in public areas discussing matters of public concern is alarming given that it is squarely at odds with the First Amendment. Worse, Posner’s comments smack of condescension for journalists.”

Jonathan Turley also is taken aback. He writes on his blog, “What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. … As someone who admires Posner’s contributions to the law, it is disappointing to read such biased and dismissive comments in a free speech case. For police wondering ‘who will rid us of these meddling citizens?,’ they appear to have one jurist in Illinois not just ready but eager to step forward.”

Unfortunately, the facts of the case show that Turley’s comment is not the hyperbole you wish it were. The story told by one of the plaintiffs in the suit, Tiawanda Moore, is terrifying: She was groped in her home by a Chicago police officer who had responded to a domestic disturbance call. Moore was brave enough to take the issue to internal affairs. But they tried to deflect her complaint and sought to dissuade her from pursuing the matter. In the interests of protecting herself, she began to secretly record her conversations with investigators on her Blackberry.

When the recordings came to light, Moore was arrested and charged with violation of Illinois’s eavesdropping statute. Sadly, prosecutors took the case to trial. But in a strong affirmation of the role of civilian jurors, the jury acquitted her of the charge.

Just a few weeks ago, the First Circuit ruled that there is a constitutional right to record police actions in public places. Hopefully the Seventh Circuit will follow the lead and clear the way for snooping bloggers and sexually harassed citizens alike to be free to record the police in the City of Big Shoulders.

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Are You Kidding Me? Apple Loses Another iPhone Prototype in Another Bar

Thursday, September 1st, 2011

Apple iPhone with stick figure elements, shown running awayPhoto: Apple. Deft artistic embellishments: Me.

Last year we followed the story of Apple’s iPhone 4 prototype, which was lost in a Silicon Valley beer garden. It was a blog law story because Apple went in heavy against tech blogger Jason Chen, getting a multi-jurisdiction police task force to raid to his home and seize a bunch of his property. And this was after the guy who found the phone tried to return it to Apple and Apple refused to return his calls.

Now, it’s happening again. This time an iPhone 5 prototype was dropped in Cava 22, a tequila bar in the Mission District of San Francisco.

As CNET, who broke the story, reports:

Apple electronically traced the phone to a two-floor, single-family home in San Francisco’s Bernal Heights neighborhood, according to the source.

When San Francisco police and Apple’s investigators visited the house, they spoke with a man in his twenties who acknowledged being at Cava 22 on the night the device went missing. But he denied knowing anything about the phone. The man gave police permission to search the house, and they found nothing, the source said. Before leaving the house, the Apple employees offered the man money for the phone no questions asked, the source said, adding that the man continued to deny he had knowledge of the phone.

I don’t know what’s more unbelievable, that Apple lost another iPhone, or that the San Francisco Police Department investigated a lost-property claim. When I lived in SF, a friend of mine got his car broken into and his radio stolen, and when he filled out his police report and asked the officer if they would be investigating it, they looked at him like he was crazy. I guess if you are Apple, you can get great customer service from the SFPD. That’s kind of ironic since Apple itself is pretty deficient in the customer service area.

By the way, take it from a law professor, don’t give the police permission to search your home. Arrgh.

Here are last year’s posts about the Jason Chen / iPhone 4 mess:

Big Federal Appeals Court Victory for Filming Police in Public

Tuesday, August 30th, 2011

Seal of the First Circuit Court of AppealsThe Citizen Media Law Project at Harvard Law School’s Berkman Center reports that the federal First Circuit Court of Appeals has “issued a resounding and unanimous opinion” in support of the constitutional right to record police actions in public places. As I noted in March, this case has big implications for bloggers.

With his cellphone, attorney Simon Glik videoed Boston Police officers arresting a homeless man in Boston Common, a public park downtown. The charge? Criminal violation of Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99), which was total nonsense in this situation. The law prohibits “secretly” recording wire or oral communications. The police sought to contort it beyond recognition as a pretext for arresting someone documenting possible police abuse. Cooler heads prevailed when the charges were quickly dismissed. But happily, Glik worked to vindicate the rights of citizen reporters everywhere by filing a federal lawsuit after the fact. And now, he’s won big, establishing that he had both a First Amendment right and a Fourth Amendment right to record.

The opinion is available as a pdf. If you don’t have time to plow through it all, Jeffrey P. Hermes on CMLP’s blog offers these delightful pullquotes:

  • “Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and … his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.”
  • “[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 filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’”
  • “[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
  • “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.’”

Good stuff. Maybe I’ll be assigning this later in the semester in my Media & Entertainment Law class.

ALCU to Sue Baltimore Police Over On-the-Spot Video Seizure and Deletion

Thursday, August 18th, 2011

Badge of the Baltimore Police Department and still from YouTube video of police incident at 2010 Preakness Stakes

The Baltimore Sun reports that the American Civil Liberties Union is threatening to sue Baltimore police for illegally seizing a man’s camera and deleting videos from it at the 2010 Preakness Stakes. This could be an important case for citizen journalists and bloggers.

The man, Christopher Sharp, was taking video with his cell phone of what appears to be the use of excessive force in the arrest of a woman, a friend of Sharp’s, at the prestigious thoroughbred horse race. According to the ACLU press release:

[A]fter Sharp recorded the police beating, he was detained and harangued by police officers, who demanded that he surrender his cellphone as “evidence”. Sharp politely declined, but police continued to demand that he give up his phone. Fearing arrest, he finally handed over the phone to an officer who assured him he would simply download the videos for evidentiary purposes, then return the phone to Sharp. Instead, police destroyed the beating videos and all other videos it contained – about two dozen in all – before returning the phone to Sharp.

Another video of the same event shows the bleeding woman pinned down on the floor of the Pimlico Race Course clubhouse as a crowd watches in a wide circle. One police officer can be heard asking “Why’re they taking pictures?” and saying “Get him,” directing a fellow police officers to the location of a camera-operating onlooker.

Also in that video, you can hear another police officer making false assertions about the law, saying that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” In order for Maryland’s wiretapping law to apply, there would have to be a reasonable expectation of privacy. It would be beyond absurd to argue that the police had a reasonable expectation of privacy while arresting a woman in the middle of huge crowd at one of the biggest sporting events of the year. Even if there had been no crowd, the law should, in my opinion, construe an implied lack of expectation of privacy in all encounters between police, in the course of their duites, and members of the public.

Putting aside the legal, constitutional, and political questions, there is the simple sad fact that Sharp lost a lot of video footage that was tremendously valuable to him.

“I’m heartbroken over the videos I lost of my son and I doing things together,” said Sharp in the press release. “The videos were keepsakes of memories like his soccer and basketball games, times at the beach and the Howard County fair. It kills me that the police acted as if it was okay for them to could just wipe out some of my fondest memories. I used to trust police, but now I don’t anymore, because of how wrongly the police acted here, and because it seemed like this was just routine procedure for them.”

Big Island Blogger Bloodied and Bruised for Photographing Police

Tuesday, August 16th, 2011

Damon Tucker's wife took these pictures of Tucker's injuries which Tucker posted on his blog.

Hawaiian Blogger Damon Tucker has reported he was arrested recently for taking pictures and video of police arresting other people. Tucker wrote that his camera and cell phone were seized and that he was roughed up pretty badly, as evidenced by pictures he posted (example at right). He writes:

 

People are allowed to take pictures and videos of police officers w/out getting roughed up. I’m battered, bruised and bloody from an officer slamming on the sidewalk …

I just want my cell phone back and camera back…. I was rolling video when the officer took me down and they took my cell phone and camera from me for “Evidence”.

Tucker says he has eyewitnesses who will corroborate his story. He plans to sue.

More:

Prosecutor Michael C. Green Should Resign

Tuesday, June 28th, 2011

Monroe County District Attorney Michael C. Green (Photo: Monroe County)

Prosecutors have dismissed their case against Emily Good, who was arrested for video recording Rochester, N.Y. police officers during a traffic stop. Good, who was doing the filming while on her own property, was charged with “obstructing government administration.”

The entire affair was a rank abuse of power.

The police involved should be disciplined. Many have chimed in to call for that, and an internal review is pending. But what I have not seen much discussion of is the role of the DA’s office in this.

Good was arrested May 12. It took until yesterday, June 27, for the DA’s office to get rid of this case. That is, they waited until after a media firestorm and protests erupted. The fact is, Good never should have been charged. The DA’s office in Monroe County, N.Y. failed in its obligation to protect the public trust. Instead, the district attorney’s office used its resources to intimidate a citizen obviously exercising constitutionally protected rights.

Monroe County DA Michael C. Green should tender his resignation immediately.

Unless there is something big that I’m missing – such as Green being in a coma for the last month – he bears the responsibility for the lion’s share of this disgrace. The police arrested Good. But it was the DA’s office who pursued the case.

The Monroe County DA’s office is a big place, and I understand that, but there is no way this could have escaped Green’s attention early on. Green should have taken action immediately to dismiss the charges and set this right. Instead, by pursuing the case as far as he did, Green – who is an elected official – sent a clear message that he will use the power of his office to protect local government from citizen scrutiny and intimidate its critics.

And, by keeping this going, he forced Good to hire a lawyer to defend herself from these sham charges. Someone had to pay for that. And no citizen should have to endure it. Absolutely outrageous.

Shame on Mike Green.

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Looking Back: Rankled Local Officials vs. Anonymous Bloggers

Thursday, April 28th, 2011

I’ve been thinking back over the last year, Blog Law Blog’s first year, and trying to figure out what broad lessons there are to be learned about blog law. The most striking thing to me, I think, is the tremendous number of altercations we’ve seen between local officials and bloggers.

In both Canada and the United States, it seems like local government officials are highly intolerant of harsh criticism. They try to unmask anonymous bloggers and commenters. They use town counsel money and subpoenas to get at their tormentors.

Where do local officials get off thinking they should be able to silence online critics? What’s a bit puzzling is that the behavior exhibited by local officials toward the online press is something you would never see either (1) by federal or higher-level state politicians and officials, or (2) by local officials against the traditional media. Well, you might see it very rarely. But not with the frequency and abandon with which town politicos go after laptop-wielding gadflies.

So what accounts for the difference?

I think a big part of it is that local officials aren’t used to the heat. National politicians have always put up with vitriol. For them, the internet has perhaps added to the number of hecklers, but the phenomenon is not utterly new for elite officials.

But on the local level, blogs have propelled brickbats into a void. It’s all new for local officials. And the do not like it.

Much of the blog activity that leads to lawsuits is mean-spirited and nothing to cheer about. Nonetheless, you can’t deny that this is participatory democracy. I can’t help but think that when blogging comes to town hall, it is perhaps the greatest fulfillment of the vision the forefathers had for the First Amendment. This is the core within the core of free speech. I think Jefferson, Madison, and the rest would say this is exactly what democracy and freedom of press are all about.

That said, I get that it hurts. A big part of what drives local officials to get lawyered up is the anonymity blogs allow. People are mean anonymously in a way the would never be with their name attached. There’s no doubt about that.

Another part of the story is that the criticism is in print. No doubt local officials have always been subject to mean-spirited gossip. But gossip uttered on the air is less hurtful than font-rendered invective. It goes back to the traditional legal difference between slander and libel – that is, oral vs. written defamation. The common law’s distinction no doubt grows from an important difference in how we perceive the harmfulness of ephemeral speech versus inky text.

Here are posts from BLB where local officials use the law to attack blogs in 2010:

First Circuit Case on Right to Video Police in Public Places

Friday, March 18th, 2011
Boston skyline over the Charles River (Photo: EEJ)

Boston skyline over the Charles River (Photo: EEJ)

The First Circuit Court of Appeals is considering Glik v. Cunniffe, et al (10-1764), a case that has big-time implications for American bloggers and other members of the citizen media with a bent toward gathering news where it happens.

As the Citizen Media Law Project reports on its blog, Harvard Law School’s Cyberlaw Clinic, the CMLP, and a coalition of other organizations, including the Reporters Committee for Freedom of the Press and several big media companies, filed an amicus curiae (“friend of the court”) brief recently in the case. The amici urged the court to uphold a First Amendment right to gather news in public places.

Here’s the brief: [pdf]

An attorney, Simon Glik, used his cellphone to make a video recording of Boston Police officers arresting a homeless man in downtown’s Boston Common, a big public park. Obviously, the police were annoyed. Glik was then arrested. The charge was an interesting one – criminal wiretaping.

Yes, really.

Glik was charged with a violation of the Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99). Here’s the most relevant bits of the law:

B. Definitions. As used in this section—

2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

C. Offenses.

1. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who—

willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

Do you think what Glik was doing was really “secret”. I kind of doubt it, since he was arrested on the scene.

Specifically, the police noticed what Glik was doing and then asked him whether the phone had audio recording capability. After Glik confirmed that it did, they arrested him.

Why was Glik recording the arrest of the homeless man, by the way? He thought the police were using excessive force. Now you begin to get a picture of just how annoyed these police officers must have been.

Well, the charges were, as you might imagine, quickly dismissed. After that, Gilk filed suit in federal court to vindicate his rights. The district court denied the defendant’s motion to dismiss, and now we are in the Court of Appeals.

Good luck to Glik and the amici!

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WNYC Interview of Previously Censored Tunisian Blogger Lina Ben Mhenni

Tuesday, January 25th, 2011

Lina Ben Mhenni

Lina Ben Mhenni, photo from her blog

WNYC’s On the Media has run an interview of Tunisian blogger Lina Ben Mhenni, whose blog, A Tunisian Girl, was banned under now-deposed dictator Ben Ali’s regime.

Ben Mhenni’s influential blog posted pictures of people injured and killed during the recent Tunisian protests.

In the interview, Ben Mhenni says she is currently being followed everywhere and relentlessly harassed by the police, but that there is nonetheless a burgeoning sense of freedom of speech in the country. Journalists are able to work in the open, and her blog is no longer being censored.

While her blog was banned, only foreign audiences were able to read it. Now, she says, her domestic audience is building.