Concord Monitor Rails Against Wiretapping Law

First, the Concord Monitor tells the story of Joe Hamel, who recorded a Concord city bureaucrat and had his home searched by police, was charged with “wiretapping” and eventually had the charges dropped. The story also features quotes from heroic first amendment attorney Jon Meyer. Then, they editorialize in favor of the police no longer arresting people for recording government workers. Both articles are very good.

Here’s the story about Hamel:

Joe Hamel says it’s time to move from his Pembroke apartment.

He’s nervous, looking over his shoulder the past two months since the Concord police, armed with a search warrant, banged on his door one morning at 9 and ordered him and his girlfriend onto their porch.

Within minutes, the cops found what they had come for: a tablet with a video/audio recording of the city’s health and licensing officer. Hamel believed the officer, Gene Blake, had falsely told him he had no recourse after a licensing board rejected Hamel’s application to drive a cab.

Hamel taped Blake because he felt his right to an appeal was being dismissed, and he wanted proof that Blake was merely “blowing him off,” as Hamel later said.

Blake, though, says he followed proper procedure, telling Hamel he had to first speak to the Concord police. Meanwhile, the cops say they had probable cause for the search warrant, the city prosecutor later dropped the charges and Hamel’s attorney claimed his client’s civil rights were trampled.

And Hamel? He was welcomed into the ever-changing technological landscape, in this case booked on wiretapping charges,

that at times features gray areas, interpretation of law and privacy issues galore.

“I worked for the New Hampshire Civil Liberties Union going back to the late 1970s,” said Jon Meyer, the Manchester attorney hired by Hamel. “And in the late 1970s, I can tell you that we did not have this issue.

“I’m hoping the judiciary starts looking at this issue,” Meyer continued. “People are so reflexively used to the wiretap statute that they don’t give thoughts to the other consideration here. I hope that changes, because I don’t want to spend the rest of my career as a lawyer putting out these kinds of fires.”

Meyer and Hamel were eager to talk about this fire. Hamel’s story begins last winter, after he submitted an application and the $52 fee for a cabbie’s license. But his driving record – lots of speeding tickets – and criminal record – receiving stolen property – led the police to reject his request.

“In the time period between submitting the application and getting denied, I was doing a lot of research online,” said Hamel, 31. “I came across the Concord municipal website, and it had a section for taxi cab licensing. It said if you’re denied, you have the right to an appeal.”

But, Hamel insists, Blake stonewalled him, telling him the police were concerned with his record, and that no appeal would be held.

“He said I had no right to appeal this,” Hamel said.

Countered Blake, “Of course he had a right (to an appeal). I told him the first step is to go to the police department, since they are the ones denying the taxi license. He got irate. He didn’t want to listen.”

Hamel said this is when he took out his tablet, ensuring he had proof that an official wasn’t doing his job. Hamel, sitting at a Dunkin’ Donuts recently, placed his tablet on the table, beside his cup of coffee, with emphasis and a thud to show that Blake did, indeed, know that he was recording.

“I pointed it right at him,” Hamel said.

Blake, however, denies that he knew he was on camera, saying, “As far as I know, he didn’t have anything in his hands.”

Hamel called city officials to secure his appeal, which was held in April. Blake was there and claimed he had tried to explain the process. That’s when Hamel said that he had recorded the exchange, apparently catching the attention of the police.

Four days later, the Concord police – five, Hamel said – entered his apartment. Hamel says he was naked and had to dress in front of a cop in his bedroom, then join his girlfriend outside, both wondering why their home was being searched.

The police say they had every right to conduct the search. “The case was investigated and probable cause existed based on information and circumstances we had,” Concord police Chief John Duval said via email.

Enter a case involving Simon Glik, a Boston man charged with illegal wiretapping after using his cell phone to document what he thought was a case of police brutality during an arrest. The United State Court of Appeals for the First Circuit ruled two years ago that Glik’s rights had been violated, saying private citizens had a right to audiotape public officials during public business in public places.

That ruling’s effect extended north, to New Hampshire.

The result? City prosecutor Tracy Connolly dropped the charges, saying, “A case law came up after the arrest. Sometimes, after viewing the facts, a charge doesn’t meet the statute.”

Meyer praised Connolly for her decision, adding that he never conferred with her before the charges were dropped. That, he said, was unusual.

“She said this was virtually unprecedented,” Meyer said. “It wasn’t even a matter of me persuading her.”

Meyer, though, wasn’t as flattering toward the police and judges. Generally speaking, he said the Glik ruling, plus the recording craze that is now part of our culture, means boundaries of understanding need to expand.

“People have their whole lives on those tablets, and what an incredible invasion of privacy that is,” Meyer said. “There are too many times where individuals trying to hold government accountable are being prosecuted. Part of the reason is ignorance, and that ignorance extends to the police and some district court judges.”

Hamel has since chosen to leave town. His cell phone repair business isn’t doing well, and he hopes to land a job at a car dealership in Rochester and move there.

After he was cuffed, fingerprinted and photographed, he says this incident has changed him forever.

“Can you blame me for being paranoid?” Hamel asked. “I don’t want to live around here anymore.”

And here’s the editorial piece:

The confiscation of Pembroke resident Joe Hamel’s tablet computer by the Concord police should never have happened. That it did reflects an ignorance of the limits of wiretapping laws on the part of the police and the district court judge who granted the warrant to search Hamel’s apartment.

Hamel had applied to the city for a cab driver’s license and was rejected by the licensing board last spring. He subsequently learned from the city’s website that he had the right to appeal that decision, and he met with Concord’s veteran health and licensing officer, Gene Blake, to discuss the matter. Because he was dissatisfied with Blake’s response, Hamel told Monitor columnist Ray Duckler, he angrily placed his tablet down and began recording the exchange using audio and video.

Hamel says Blake knew he was being recorded. Blake said he did not. Either way, it’s irrelevant, something city prosecutor Tracy Connolly quickly recognized when the case got to her and she dropped the charges. New Hampshire is one of a dozen or so states that require all parties to consent to being recorded, but there are exceptions, including one grounded in the First Amendment.

The law permits the recording of public officials who are carrying out their duties in a public place. Had Connolly or someone else who understood wiretapping laws been consulted, Hamel would have been spared an embarrassing search of his home, where he was allegedly unclothed and required to dress in front of an officer, and the confiscation of his computer.

The ignorance on the part of the police and a judge, given all the publicity of misguided wiretapping arrests by the police in Weare and elsewhere, plus federal court rulings affirming the right of citizens to film or record public officials, is surprising.

It points to the need for the state’s new attorney general, Joe Foster, to conduct an education campaign that should include seminars for top law enforcement officers and a handout, similar to the one used to inform public officials about the right-to-know law, that public officials can keep on their desks and the police in their cruisers.

In 2006, a Nashua man with a security camera on his porch recorded local officers who arrived to question his then-teenage son. A sign on the porch warned that anyone nearby was being recorded. The man subsequently took his video recording to the police to complain about the demeanor of one of the officers. He was then charged with illegal wiretapping and his recording equipment was confiscated. Ultimately, charges were dropped, the equipment returned and he was issued an apology. The following year, Boston attorney Simon Glik was arrested for using his cell phone to record the Boston police, who he said were beating a homeless man on Boston Common.

He was charged with illegal wiretapping, aiding the escape of a prisoner and disturbing the peace. The U.S. Court of Appeals for the First Circuit subsequently ruled the filming of public officials in a public place, by the press or anyone else, is not grounds for arrest. Glik subsequently settled with the city of Boston for $170,000, a bill picked up by taxpayers.

The improper search of someone’s home and the confiscation of their property is no small matter. When the property confiscated is a cell phone or computer, it likely contains a wealth of private information about friends, phone numbers, photos, email conversations and private thoughts, things few people would willingly share with the police.

We urge Foster to do what it takes to make Hamel’s improper arrest on wiretapping charges the last of its kind.