The Blogg

This article is a disgusting example of what happens when we allow the criminal code to be so vast that nearly everyone, everywhere, at any time is in violation of something. On one level, this is a case of law enforcement doing whatever they can to cover up evidence of near-malfeasance. That is terrible, but I am more concerned with the law itself that is written in such a way that this could be construed as a crime. I am glad to see that Pennsylvania has a statutory exception allowing the activity of on-duty police officers to be recorded, but we need to go much further. The idea that “wiretapping” laws should be applicable to cases in which no tapping of wires or similar actions occurred is ludicrous.

If a helmet-mounted camera is an instance of wiretapping, what about cameras owned by banks and placed nearby automated teller machines in public streets? Do the banks have some kind of immunity from this because they are large corporations? What about a student who uses a personal recorder to tape lectures for later review? Should they be required to explicitly inform all other students in the class that they are doing so, lest they accidentally record a student asking a question or talking to a classmate? Are pranksters making “candid camera” style recordings criminals?

What would be a sane, fair law that protects privacy? How about this: It is a felony to intentionally record, transmit, or listen to a conversation to which you are not a party when the parties to the conversation have a reasonable expectation of privacy. Any other such activity is perfectly legal. The cases in which a person might reasonably expect privacy are quite limited, restricted essentially to conversations occurring on private property. The case discussed in this article would be legal for two reasons: first, it occurred on a public roadway where there is no expectation of privacy, and second, the motorcyclist was a party to the conversation. The second exception is not sufficient by itself because we would like to protect things like the video of the Rodney King beating, which was produced by a bystander.

Other than the “common sense” change in my law related to public spaces is a potentially more controversial change: that you may record any conversation to which you are a party. Recording conversations is one of the only ways in which the powerless can have justice against the powerful. Whether the subject is a motorist recording a questionable police action, an employee recording instructions from a supervisor who likes to blame his workers for his own errors, a victim recording a threat from a bully or blackmailer, or a whistleblower gathering proof of misconduct, the ability to record is essential. In my opinion this good far outweighs privacy concerns. After all, if I am party to a conversation I may already tell other people what I heard. The only change in allowing that conversation to be recorded is that I will have proof. The truth would set us free-er.