Traffic stop video on YouTube sparks debate on police use of Md. wiretap laws

By Annys Shin
Washington Post Staff Writer
Wednesday, June 16, 2010

It started as just another traffic stop.

In early March, Anthony Graber, a 25-year-old staff sergeant for the Maryland Air National Guard, was humming a tune while riding his two-year-old Honda motorcycle down Interstate 95, not far from his home north of Baltimore. On top of his helmet was a camera he often used to record his journeys. The camera was rolling when an unmarked gray sedan cut him off as he stopped behind several other cars along Exit 80.

From the driver's side emerged a man in a gray pullover and jeans. The man, who was wielding a gun, 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, who'd been observed popping a wheelie while speeding, was cited for doing 80 in a 65 mph zone. Graber accepted his ticket, which he says he deserved.

(Watch the video from the incident)

A week later, on March 10, Graber posted his video of the encounter on YouTube. What followed wasn't a furor over the police officer's behavior but over Graber's use of a camera to capture the entire episode.

On April 8, Graber was awakened by six officers raiding his parents' home in Abingdon, Md., where he lived with his wife and two young children. He learned later that prosecutors had obtained a grand jury indictment alleging he had violated state wiretap laws by recording the trooper without his consent.

The case has ignited a debate over whether police are twisting a decades-old statute intended to protect people from government intrusions of privacy to, instead, keep residents from recording police activity.

Maryland's wiretap law applies only to audio recordings, so it is just the sound from Graber's video that is at issue legally. Like 11 other states, Maryland requires all parties to consent before a recording might be made if a conversation takes place where there is a "reasonable expectation of privacy." (By contrast, Virginia and the District require one party's consent to a recording.) But is there any expectation of privacy in a police stop? That's where police and civil libertarians differ.

During a 90-minute search of Graber's parents' home, police confiscated four computers, the camera, external hard drives and thumb drives. The police didn't take Graber to jail that day because he had just had gall bladder surgery.

A week later, he turned himself in. "I just wanted to do the right thing," he said in an April interview with Miami journalist Carlos Miller, who runs the blog Photography Is Not a Crime.

It was Graber's first arrest. He spent 26 hours in jail. Graber has since stopped talking publicly about the case on the advice of his attorneys. On June 1, he was arraigned in Harford County Circuit Court in Bel Air. He faces up to 16 years in prison if convicted on all charges.

The YouTube effect

Maryland's wiretap law has been around since the 1970s, before the VHS era, let alone the digital revolution, and did not anticipate the advent of video cameras attached to helmets or embedded in cellphones. Nor did the law anticipate YouTube and the ease with which such videos could be disseminated. Until now, its most famous alleged violator was Monica Lewinsky confidante Linda Tripp -- then a Columbia resident -- who taped her phone conversations with the aide about her relationship with President Bill Clinton. (The case was dismissed.)

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