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Web site ordered to pull down arrest video
By adamg on Thu, 02/16/2006 - 8:43am
The Worcester Telegram and Gazette reports:
State police have threatened a local Web site operator with a felony charge for posting a videotape of an arrest conducted by troopers connected to Worcester District Attorney John J. Conte’s office.
The video, posted at www.conte2006.com, shows police arresting Paul Pechonis at his Northboro home on Sept. 29 and apparently conducting a search for several minutes afterward. ...
Pechonis is currently charged with using his own Web sites (here's one) to threaten to kill a Marlborough police officer and to call for the execution of a Worcester judge.
In the letter to Mary T. Jean of Leominster, who runs the anti-John Conte site, State Police cited a section of state law dealing with illegal surveillance and wiretapping:
... The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited. ...
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Comments
But, uh, it's ok if the Feds
But, uh, it's ok if the Feds do it?
Illegal surveilance?
Videotaping is illegal? What if it was a news camera? Okay, so then where is the line?
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From the brains behind http://www.bigdumptruck.com
Yes - the Feds can do it.
It's OK if the feds do it regardless of what the state law
says. That is, the state law rather thoughtfully contains a written
exemption for federal officers in the performance of their duties, but
it doesn't matter. Federal law on wiretapping is one-party consent.
Probably, that language in the state law was inserted to guide state courts in their acceptance of federally-produced evidence in the event the Commonwealth wants to use it in a state prosecution.
She doesn't really have to pull the video . . .
. . . just the sound. The law talks about the interception of oral communications. Of course, Jean could still be prosecuted for disclosure, since she's already shared prohibited interceptions of oral communications, but posting the video without sound wouldn't break the law (but it would be really really boring).
The search was questionable in terms of its constitutionality, though - the Supreme Court rule is that police can look in closets and rooms adjoining the location of the arrest, but if they want to go farther than that (e.g., upstairs, into back rooms, basements, etc.), there must be specific facts suggesting that the area to be searched actually contains an individual posing a danger to the police or the person being arrested. (The Supreme Court case that establishes the rule is here. Of course, they didn't find anything when they searched Pechonis's house, so it's all pretty much moot from a legal standpoint.
Josh is correct.
The law is clear. In this context, the wiretapping statute covers the oral communications. It does not cover video.
I didn't watch the whole thing, but Josh's recitation of the case law is accurate as far as search incident to arrest and protective sweeps. (I do not know if state law is even more restrictive; it may be.)
Good comment, Josh.
wait, I can't videotape in my own house?
Am I misunderstanding something here? He videotaped his own arrest, with his own camera, on his own private property? Why isn't that tape his to do whatever he wants with?
I think you can
I think you can run tape in your own house, as long as it isn't audio tape.
Whether you can videotape in your own house
Under the law, you can, like carpundit says, tape to your heart's content without sound, or get the consent of the people whose oral communications you're taping. And yes, the law applies even in your own home.
Look at the law
The law the State Police refers to is meant for going after the mob, not after a woman who for whatever reason wants to criticize a public official. It's mission creep at its worst.
It may be mission creep
. . . but that's not a very good argument. If the law applies by its terms, it applies. It might be unconstitutional, but that's a separate question. Laws designed for one purpose are used for other purposes all the time - just look at the federal RICO statute - originally meant to go after the mafia, and now frequently employed against big business.
That's not quite right
The law is aimed at everyone. The exception is aimed at the
mob.
That is, the law is a blanket prohibition on wiretapping that allows
wiretapping in the limited circumstance where the police are going
after the mob. No other wiretapping is allowed.
(Note that I am using "wiretapping" as an overall term to describe the
interception of oral, wire or electronic communications.)