Further Collisions of Old Wiretapping Laws, New Technologies, and Police Who Claim a Right to Privacy


An Oregon Court of appeals recently ruled that a man who taped his own traffic stop in 2008 should not have been arrested for that act, even though Oregon is one of the many states with a frustratingly vague wiretapping law. (Though not one of the 12 that officially require both parties to consent.)

So says Oregonlive.com:

The Eugene Police officer who pulled over Shane Neff had already told the motorist that he was recording their interaction with his in-car patrol camera. A majority of judges ruled that was enough notice, and Neff needn't announce to the officer that his phone also was capturing their conversation…. 

[Neff's attorney said the] 33-year-old dad, was doing nothing wrong on Nov. 4, 2008 when Eugene Officer Sam Ou ran Neff's license plate through his computer, then stopped Neff because he mistakenly believed Neff had a suspended license. 

The rest of the articles goes into some of the controversies with which Reason readers might be familar, such as whether public servants have any right to privacy and how obligated are people—if they are at all—to tell police they're being recorded.

But, some recent interpretation of Oregon's law are on the side of Shane Neff and maybe courts are moving towards ruling correctly on the absurdity of treating someone skittish about the police the same as someone who is spying on their neighbor for kicks. Plus the Eugene police department's spokeswoman assures the public that people will now have to commit additional crimes before they're hauled off and arrested.

Sadly, a Florida 21-year-old man is in some trouble because his state is another one of those "two-party consent" states and cops don't always consent. Carl Paul was pulled over by police late on November 1, which he questioned, then according to the Florida Sun-Sentinel:

Paul asked the deputies for their names while his iPhone sat on his leg. When the deputies noticed that Paul was recording the conversation, he said he was "documenting what was happening," the affidavit stated.

Paul was informed he did not have the deputies' permission to record, a violation of state law, and was arrested after he did not stop recording.

Further sources note that Paul was described as "belligerent" when he talked to the officers and that he was held on $4500 bail and charged with "illegal interception of communication."

The Miami New Times blog disdainfully suggests that arresting officers get with the times/generally accepted interpretation of the law:

While the courts have yet to make a definitive ruling on a federal level, most legal experts agree that although Florida is a "two-party consent" state for recordings, the law has a clear exception for situations where there is no "expectation of privacy"—for example, when a cop is working in the middle of a public street.

Still, depending on judicial sanity is nice, having legislative sanity cemented would be better.

Reason on the war on cameras, particularly Radley Balko's January 2011 cover features and the excellent Reason.tv video below: