"Filming a traffic stop doesn't fit felony category
Tuesday, June 12, 2007
Brian D. Kelly, 18, of Carlisle likely isn't the only the person around central Pennsylvania who was unaware that recording a police officer during the commission of a traffic stop constitutes a felony criminal act.
Kelly, who says one of his hobbies is making movies, had his camera rolling last month when the pickup truck he was riding in was pulled over by a Carlisle police officer for traffic violations. About 20 minutes into the police stop, the officer noticed that Kelly had a camera pointed at him and told him to turn it off, which he did. Kelly was then charged with felony wiretapping, which carries a penalty of up to seven years in state prison. The young man spent 26 hours in Cumberland County Prison before his mother posted her house to bail him out.
The logic of interpreting the wiretap law to make it a felony to record police carrying out their duties escapes us, given that increasingly police themselves record traffic stops. In addition, police are regularly recorded by the news media with their acquiescence or permission. And some notable incidents of police using excessive force have been recorded on video.
Even Cumberland County District Attorney David Freed seemed to concede that there was some ambiguity in the law, that "often these cases come down to questions of intent." There were also suggestions that a solution might be to allow Kelly to plead to a lesser charge, an all-too common gambit when an arrest is over the top, as is this one surely is.
This young man's life should not be permanently tarnished by this incident, one that hardly rises to the level of criminality. In any event, it is time for the Legislature to fine tune the law to prevent future miscarriages of justice. "
"WIRETAPPING & ELECTRONIC SURVEILLANCE IN PENNSYLVANIA
By: Eric M. NoonanAssistant Executive Deputy Attorney GeneralOrganized Crime & Narcotics
The general rule in Pennsylvania is that electronic surveillance is illegal.
For the purposes of this article, "electronic surveillance" shall include the interception (to include recording) of electronic (digital pagers, computers/e-mail, fax machines), oral (face-to-face conversations where there is an expectation of privacy/non-interruption) and wire (telephone conversations) communications. This general rule, and certain limited exceptions thereto, appear in Pennsylvania's Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. § 5701, et seq.
Some 41 other states nationwide have their own wiretapping/electronic surveillance statutes. These statutes follow either a "one party consent" or "two/all party consent" rule. The former creates an exception to the foregoing general prohibition if one of the parties to the intercepted communication is aware of, and has consented to the interception. The latter reflects a more restrictive rule -- that being that both, or all parties to the intercepted communication must be aware of and have consented to its interception. Pennsylvania falls into the latter, more restrictive category.
In addition to the various state statutes, the federal government has its own wiretapping/electronic surveillance statute at 18 U.S.C. § 2510 et seq. The federal statute is of the less-restrictive "one party consent" variety. This federal law is what authorizes the various states to enact their own statutes. Generally speaking, in order for state statutes to be deemed lawful, they must comport with the constraints of the federal statute. The state statutes can be even more restrictive than the federal statutes, however, they cannot be less restrictive. In addition, there must be compliance with the constraints of the United States Constitution and the respective state constitutions.
There are certain limited exceptions to the general prohibition against electronic surveillance. The exceptions exist for so-called "providers of wire or electronic communication service" (e.g., telephone companies and the like) and law enforcement in the furtherance of criminal investigative activities. With the limited exception of telemarketers, there is no sweeping exception for the private sector absent all parties' awareness and consent to the interception of the communication.
As to the providers' exception -- this generally relates to ensuring the proper operation of their facilities and protection of themselves and their customers from fraudulent or illegal use of their facilities. As to the law enforcement exception -- interceptions can only be undertaken in the furtherance of a criminal investigation. Further, the police do not have an unfettered ability to do interceptions. Their authority is tempered in situations where one of the parties has consented to law enforcement's eavesdropping by the fact that they must get the prior approval of a designated prosecutor.
Further, in the event the conversation is expected to take place in a home, a probable cause-based court order is required in addition to the attorney's approval. In the event the interception proposed by law enforcement is without any of the participants' knowledge or consent, then a court must issue an order based not only on a finding of probable cause, but also a judicial finding that the technique is necessary -- that more traditional/less intrusive investigative techniques would fail or would be fruitless to continue, or would be too dangerous to try. As to the telemarketers' exception -- interception can only be undertaken for training, quality control or business monitoring purposes.
The majority of the Act is devoted to the law enforcement exception. In that regard, the Act provides law enforcement with five investigative techniques: 1) consensual interception of electronic, oral or wire communications (where one of the parties to the communication is aware of, and has consented to law enforcement's electronic eavesdropping); 2) records/information access (i.e. toll records/long distance billing information subscriber information, etc.); 3) mobile tracking devices (electronic tracking of the movement of a vehicle, parcel, etc.); 4) pen register/trap & trace device and telecommunication identification interception device (devices that provide law enforcement with the outgoing numbers dialed from a targeted telephone facility, source of incoming calls to a targeted telephone facility and the electronic serial number/mobile identification number assigned to a cellular telephone facility, respectively); and
5) nonconsensual interception of electronic, oral or wire communications (where none of participants in the communication are aware of or have consented to law enforcement's electronic eavesdropping).
As to 1), consensuals -- the technique must receive the prior approval of the District Attorney, Attorney General or an Assistant DA/Deputy AG before being undertaken. Further, if the technique is to occur in the "home" of anyone other than the consenting party, then a probable cause-based court order is also required. As to 2), records/information access -- either a subpoena, search warrant, court order or the consent of the customer/subscriber to the facility in question must be obtained before law enforcement can access the material. As to 3), mobile tracking -- a court order is required before the technique may be undertaken. As to 4), pen register, etc. -- a probable cause-based court order is required. As to 5) nonconsensuals -- a probable cause-based court order is required finding not only that certain crimes have been, will be or are being committed, but also that there is a need for law enforcement's use of this technique.
Disclosure/use of contents of communications obtained hereby is authorized only in extremely limited circumstances. For criminal investigative purposes, an investigative or law enforcement officer who, pursuant to the proper performance of his/her duties has acquired knowledge of the contents of a communication, may disclose such contents to another investigative or law enforcement officer so long as such disclosure is appropriate to the proper performance of the duties of both the disclosing and receiving officer. Likewise, such investigative or law enforcement officer may use such information (which may implicitly include further disclosure) as appropriate to the proper performance of that officer's duties (such as disclosure to a judge in an affidavit for a search or arrest warrant). Such contents may also be disclosed while giving testimony under oath in any criminal proceeding or in quasi-criminal, forfeiture or professional disciplinary proceedings. Beyond the foregoing parameters, disclosure/use of intercepted communications is prohibited with both civil and criminal penalties.
A person's (private citizen or law enforcement) violation of this statute can arise in the following four general areas: 1) he/she can unlawfully intercept or procure another to unlawfully intercept a wire, oral or electronic communication; 2) he/she can unlawfully disclose the contents of an electronic, oral or wire communication; 3) he/she can unlawfully use the contents of an electronic, oral or wire communication; and 4) he/she can unlawfully advertise, sell or possess an "electronic, mechanical or other device(s)" which, by its design renders it primarily useful for the surreptitious interception of electronic, oral or wire communications. The violation of any of these provisions constitutes a felony of the third degree (and yes, this includes the prohibition of a private citizen from tapping his/her own phone and/or bugging his/her own home).
As noted above, law enforcement personnel cannot electronically eavesdrop without proper authority (i.e. prior independent review by either a designated prosecutor or the judiciary). In addition to the criminal sanctions for violating the Act, other sanctions that can be brought against law enforcement for violating the Wiretap Act which consist of: 1) suppression of evidence gained as a result of any unlawful interception (or evidence derived therefrom); 2) a civil suit brought by an "aggrieved person" (one whose communication was intercepted or one against whom the interception was directed) for reasonable attorneys fees and money damages; and 3) A civil suit brought by an aggrieved person to have the investigative or law enforcement officer who allegedly violated the Act removed from their law enforcement position.
In summary, Pennsylvania's Wiretapping and Electronic Surveillance Control Act is all about privacy -- the expectation of privacy we have in our communications. However, it recognizes law enforcement's periodic need to intercept communications to obtain critical evidence in criminal investigations to protect the public. In that regard, the Act strikes a balance by imposing certain requirements on law enforcement via the prior review by a prosecutor and/or judge as explained above. In protecting privacy, the constraints of the Act apply to everyone, law enforcement and private citizens alike."
In addition to the above, here is the actual wording of the ACT
"SUBCHAPTER A - GENERAL PROVISIONS
§ 5701. Short title of chapter.§ 5702. Definitions.
§ 5701. Short title of chapter.
This chapter shall be known and may be cited as the "Wiretapping and Electronic Surveillance Control Act."
§ 5702. Definitions.
As used in this chapter, the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otherwise:
A person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed.
A transfer containing the human voice at any point between and including the point of origin and the point of reception.
"Communication common carrier."
Any person engaged as a common carrier for hire, in intrastate, interstate or foreign communication by wire or radio or in intrastate, interstate or foreign radio transmission of energy; however, a person engaged in radio broadcasting shall not, while so engaged, be deemed a common carrier.
As used with respect to any wire, electronic or oral communication, is any information concerning the substance, purport, or meaning of that communication.
The Superior Court. For the purposes of Subchapter C only, the term shall mean the court of common pleas.
Any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system, except:
The radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.
Any wire or oral communication.
Any communication made through a tone-only paging device.
Any communication from a tracking device (as defined in this section).
"Electronic communication service."
Any service which provides to users the ability to send or receive wire or electronic communications.
"Electronic communication system."
Any wire, radio, electromagnetic, photo-optical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications.
"Electronic, mechanical or other device."
Any device or apparatus, including an induction coil, that can be used to intercept a wire, electronic or oral communication other than:
Any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business, or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business, or being used by a communication common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.
A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.
Any storage of such a communication by an electronic communication service for purpose of backup protection of the communication.
The determination of the origin of a telephonic communication to a known telephone during an interception.
Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.
"Investigative or law enforcement officer."
Any officer of the United States or of the Commonwealth or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offense. The term shall include, but not be limited to, employees of the Pennsylvania Crime Commission, authorized to investigate crimes enumerated in section 5708 (relating to order authorizing interception of wire or oral communications).
When referring to a judge authorized to receive applications for, and to enter, orders authorizing interceptions of wire, electronic or oral communications pursuant to this chapter, any judge of the Superior Court.
"One call system."
A communication system established by users to provide a single telephone number for contractors or designers or any other person to call notifying users of the caller's intent to engage in demolition or excavation work.
Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. The term does not include any electronic communication.
The unlawful activity of an association trafficking in illegal goods or services, including but not limited to, gambling, prostitution, loan sharking, controlled substances, labor racketeering, or other unlawful activities; or
any continuing criminal conspiracy or other unlawful practice which has as its objective:
large economic gain through fraudulent or coercive practices; or
improper governmental influence.
A device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted, with respect to wire communications, on the telephone line to which the device is attached. The term does not include a device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communication service provided by the provider, or any device used by a provider, or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of business.
Any employee, or agent of the United States or any state or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation.
"Readily accessible to the general public."
As used with respect to a radio communication, that such communication is not:
scrambled or encrypted;
transmitted using modulation techniques of which the essential parameters have been withheld from the public with the intention of preserving the privacy of the communication;
carried on a subscriber or other signal subsidiary to a radio transmission;
transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication; or
transmitted on frequencies allocated under 47 CFR Parts 25, 74D, E, F or 94, unless, in the case of a communication transmitted on a frequency allocated under Part 74 which is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio.
"Remote computing service."
The provision to the public of computer storage or processing services by means of an electronic communications system.
An electronic or mechanical device which permits only the tracking of the movement of a person or object.
"Trap and trace device."
A device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.
Any person or entity who:
uses an electronic communication service; and
is duly authorized by the provider of the service to engage in the use.
Any aural transfer made in whole or in part through the use of facilities for the transmission of communication by wire, cable or other like connection between the point of origin and the point of reception, including the use of such a connection in a switching station, furnished or operated by a telephone, telegraph or radio company for hire as a communication common carrier. The term does not include the radio portion of a cordless telephone communication transmitted between the cordless telephone handset and the base unit."
Now, it is CLEAR from the above, that the wiretapping and electronic surveillance was never meant to cover actual events happening in real time in which a policeman is making a traffice stop and is being filmed by a citizen. Number one, the above scenario does not constitute the interception of electromagnetic communications in the manner covered under the statute.