This week’s post isn’t strictly a computer security topic but it’s a core privacy issue and I think that’s close enough.

Time magazine ran an article recently asking Should Videotaping the Police Really Be a Crime? The article tells the story of Anthony Graber, a Maryland Air National Guard staff sergeant, who faces up to 16 years in prison for posting a videotape of a traffic stop on YouTube.

Apparently, Graber keeps a video camera on top of his motorcycle helmet to record his journeys. He got a little too enthusiastic this time, popping a wheelie and going 80 in a 65 mph zone. The camera was rolling when an unmarked gray sedan cut him off as he stopped behind several other cars at an exit from the interstate. A man in a gray pullover and jeans got out of the car wielding a gun and repeatedly yelled at Graber, ordering him to get off his bike. Only then did Maryland State Trooper Joseph D. Uhler identify himself as “state police” and holster his weapon. Graber got a speeding ticket which he says he deserved.

Anyway, even if you deserve the speeding ticket, I can understand being upset about the traffic stop. Uhler should have known better and was certainly trained better – plainclothes police must identify themselves before they can have any expectation of obedience. If someone jumps out of a car screaming and waving a gun at me, I only hope I can react as calmly as Graber. Rather than file a formal complaint, though, Graber did what many do these days when dissatisfied with the service whether it’s of a company, a restaurant or the government – he posted his experience online.

Fast forward one month to April 8 when Graber is woken up as six officers raiding his parents’ home in Abingdon, Md., where he lived with his wife and two young children. They arrested him and confiscated four computers, the camera, external hard drives and thumb drives. He learned later that prosecutors had obtained a grand jury indictment alleging he violated state wiretap laws by recording the trooper without consent. Maryland is one of 12 states which require all parties to consent before a recording might be made if a conversation takes place where there is a “reasonable expectation of privacy.”

My apologies for the long introduction but we’re finally at the privacy issue: Does a traffic stop conducted in full view of the public and on a public roadway ever constitute a situation where there is a reasonable expectation of privacy? For that matter, is any official action by a law enforcement officer a private act deserving of that kind of protection from scrutiny? How do you square this criminal charge by the prosecutors with the COPS mentality where homes are invaded and suspects arrested on TV? (The perpetrator must sign a waiver or have his/her face blurred but no such waivers are requested of family members and other bystanders.)

I am extremely uncomfortable with the position taken by these prosecutors. In my opinion, an arrest or even a stop for questioning is an inherently public act. The State might have an obligation to protect the privacy of the suspect (since he/she still retains the presumption of innocence) but no such protection applies to the officer of the State. Nor should any such protection be needed – if an officer is behaving appropriately, why should he/she be worried about being filmed? That’s the argument trotted out by prosecutors in favor of the traffic cameras and other forms of public monitoring, after all. And it applies even more so since the officer is acting in his/her official capacity rather than a citizen’s private act of driving.

Third-party filming presents a more complicated question but in this case I think the suspect’s act of videotaping can be taken as implied consent.

Unfortunately, the Graber prosecution is not a rogue act. Prosecutions for videotaping of police encounters appear to be on the upswing. And even if they don’t win the legal case, the very threat by the police is intimidating and chills our society. Few people have the will to risk jail to defend their rights. Graber’s case may still be thrown out (his hearing is scheduled for October) but his lawyer says that “the message of intimidation has already been sent.” Graber says that he is afraid of police now and so nervous driving that he has put his motorcycle up for sale.

I’ve done a little digging into the debates around the time that Maryland and others were writing those wiretapping laws. From everything I can tell, they were written to protect us from state-sponsored intrusions into our privacy unless and until the state gets a warrant explicitly authorizing the intrusion. Can anyone find a differing opinion in the record?

So back to privacy at your company. If I believe the police should be transparent in their dealings with the public, I should hold myself to the same standard. Can an employee videotape an encounter with another? What about recording a meeting with a manager? Do they need to disclose it? What will you do when they don’t? With the advent of cellphone-based cameras, I don’t know if you could stop the recording even if you try. Disgruntled employees keep notes on their coworkers – they always have. This is different only in degree.

Ideally, we should all behave in such a way that we’d never be embarassed if something showed up online. That’s a very high standard of professionalism. We teach people over and over to make that assumption when writing emails. Now we have to think about it all the time. Are your people up to it? Are you?

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