{"id":5475,"date":"2015-12-15T19:05:19","date_gmt":"2015-12-15T19:05:19","guid":{"rendered":"http:\/\/www.rationalargumentator.com\/index\/?p=5475"},"modified":"2015-12-15T19:05:19","modified_gmt":"2015-12-15T19:05:19","slug":"cell-phone-felony-machine","status":"publish","type":"post","link":"https:\/\/www.rationalargumentator.com\/index\/blog\/2015\/12\/cell-phone-felony-machine\/","title":{"rendered":"Thanks to “Wiretapping” Laws, Your Cell Phone Is a Felony Machine – Article by Gary McGath"},"content":{"rendered":"
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\"The<\/a>Gary McGath<\/span>
\n<\/big><\/big><\/strong><\/div>\n<\/div>\n
******************************<\/div>\n
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The prosecutions are clearly meant to chill free speech<\/em><\/strong><\/p>\n

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In 2006, police in Nashua, New Hampshire, filed charges against Michael Gannon for using a security system in his home. When he brought a security recording to the police to back up a complaint about how he was treated, they arrested him and charged him with \u201cfelony wiretapping\u201d \u2014 recording what happened in his own house. They were later forced to drop the charges under intense publicity.<\/p>\n

The relevant New Hampshire law<\/a> is titled \u201cWiretapping and Eavesdropping,\u201d but it isn\u2019t restricted to electronic communications.<\/p>\n

It\u2019s a felony if someone \u201cwillfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any telecommunication or oral communication.\u201d<\/p>\n

Intercepting means \u201cthe aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of any electronic, mechanical, or other device.\u201d Oral communication means \u201cany verbal communication uttered by a person who has a reasonable expectation that the communication is not subject to interception, under circumstances justifying such expectation,\u201d but the law doesn\u2019t define \u201creasonable expectation.\u201d<\/p>\n

Recording what someone else says can be a felony unless it falls under the reasonable-expectation exception. Burglars don\u2019t expect to be recorded. I live in the same city as Gannon; if thieves broke into my home and I recorded their activity, would I dare bring the evidence to the police?<\/p>\n

The New Hampshire law is a \u201ctwo-party consent\u201d law; you can\u2019t even record your own conversation with someone else without letting him or her know. Nine to twelve states, depending on interpretation, have two-party consent requirements<\/a>.<\/p>\n

In recent years activists have successfully pushed back against using those laws to prevent or punish recording police activity. Courts have held that when they\u2019re on duty, cops don\u2019t have a reasonable expectation of privacy. Governments can still use the law against people who record other public speech, though.<\/p>\n

In 2015, in Portsmouth, New Hampshire, Christopher David was charged with felony wiretapping for recording a conversation on a public street. He recorded a private citizen<\/a> telling him he could be prosecuted for running an Uber vehicle, which the city has banned. It\u2019s easy to suspect the city is going after him for competing with the city\u2019s taxis, but officially, his \u201ccrime\u201d is recording words directed at him in public.<\/p>\n

Illinois had a similarly draconian law often used to punish recording the police, which the state\u2019s Supreme Court struck down<\/a>. The court held:<\/p>\n

The recording provision of the eavesdropping statute … burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy. Thus, it does not survive intermediate scrutiny. We hold that the recording provision is unconstitutional on its face because a substantial number of its applications violate the First Amendment.<\/p>\n

Any legal prohibition ought to satisfy the question, \u201cWhat harm to someone does it deter?\u201d Recording a person who comes up to you in public and tells you something doesn\u2019t injure him in any way. If he\u2019s giving away information he doesn\u2019t want known, that\u2019s on his own head.<\/p>\n

Eugene Volokh notes<\/a> that without a clear definition of privacy, prohibitions ostensibly designed to protect it can seriously infringe on free speech. \u201cOnce restrictions on people’s speech are accepted in the name of \u2018privacy,\u2019 people will likely use them to argue for other restrictions on \u2018privacy\u2019 grounds, even when the matter involves a very different sort of \u2018privacy.\u2019\u201d This is a serious matter, because \u201cthe right to information privacy \u2014 my right to control your communication of personally identifiable information about me \u2014 is a right to have the government stop you from speaking about me.\u201d<\/p>\n

Modern technology allows anyone to make video recordings in public, and if anyone\u2019s voice is picked up without consent, the recording could be a crime punishable by years in jail. David Rittgers, an attorney and legal policy analyst at the Cato Institute, argues<\/a>, \u201cI think in this modern age where everyone has a \u2018felony machine\u2019 in their pocket \u2014 a cell phone \u2014 the [all-party] consent law is outdated.\u201d<\/p>\n

When the government surreptitiously captures records of our private communications, it tells us we shouldn\u2019t worry if we have nothing to hide. When we record people speaking openly in public, quite a different standard applies.<\/p>\n

Most of the debate about abusive wiretapping and eavesdropping laws has focused on their use to protect police officers caught misbehaving. The problem doesn\u2019t stop there, though. When \u201creasonable expectation of privacy\u201d isn\u2019t clearly delimited, any recording of what people say in public can become an excuse to throw people in jail.<\/p>\n

Gary McGath is a freelance software engineer living in Nashua, New\u00a0Hampshire.<\/strong><\/p>\n

This article was published by The Foundation for Economic Education<\/a> and may be freely distributed, subject to a Creative Commons Attribution 4.0 International License<\/a>, which requires that credit be given to the author.<\/strong><\/p>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Gary McGath ****************************** The prosecutions are clearly meant to chill free speech In 2006, police in Nashua, New Hampshire, filed charges against Michael Gannon for using a security system in his home. When he brought a security recording to the police to back up a complaint about how he was treated, they arrested him and charged him with \u201cfelony wiretapping\u201d \u2014 recording what happened in his own house. They were later forced to drop the charges under intense publicity. The…<\/p>\n

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