Prosecution of Maryland motorcyclist who recorded his traffic stop hinges on “reasonable expectation of privacy”

As reported in today’s Washington Post, a Maryland motorcyclist who used his helmet-mounted video camera to record the state trooper who stopped him and ticketed him for speeding, and then posted the video on YouTube, now faces criminal charges under the state’s wiretapping laws. Maryland is one of several states whose laws require that both (or all) parties consent before a conversation can legally be recorded, a stipulation that can only be waived when a non-consenting party is deemed to have no reasonable expectation of privacy. In this case, it would seem the key question is whether a state law enforcement officer, making a traffic stop in public, and reasonably expect that whatever he says will be private. According to the article, Maryland’s wiretapping law does not cover video, so only the audio portion of the recording is at issue, but there seems to be a growing trend to make it illegal to film police while on duty. This trend is troublesome on many levels, not the least of which is the power imbalance that exists between law enforcement personnel and members of the public, to which (as Bruce Schneier noted eloquently more than two years ago) an appropriate response would be not to increase the transparency of government actions, not put laws in place to shield them.

With the case of the Maryland motorcyclist, the treatment of the recording as an instance of illegal wiretapping raises the “reasonable expectation” principle in yet another context. In recent months this idea had been debated and argued in court cases involving employee expectations of privacy in the workplace, particular where employees use employer-provided computers or communications equipment to transmit personal communications. Among the highest profile of these cases was City of Ontario v. Quon, argued before the Supreme Court in April, that involved personal messages sent by a police officer using his city-government-issued pager. The ruling in that case, issued this week, assumed that Quon did in fact have a reasonable expectation of privacy for the contents of his text messages, but did not decide the issue more broadly than in the specific case. If a government authority can make the argument that person-to-person communications made by an officer while on duty should not be presumed to be private, it is hard to reconcile how verbal communication (allegedly including shouting) uttered on the side of an interstate highway could be considered any less public.