Maryland prosecutors overstep on wiretapping law

Monday, June 21, 2010

ANTHONY GRABER deserved a traffic ticket for speeding on Interstate 95 while popping wheelies. What the 25-year-old Abingdon, Md., resident did not deserve was to find himself, weeks later, facing a lengthy prison sentence for violating a Maryland wiretapping law.

As The Post's Annys Shin explained, Mr. Graber's troubles started when he mounted a video camera on his motorcycle helmet. Mr. Graber was pulled over by an unmarked car in early March while on his ill-advised romp on I-95. A man in street clothes and wielding a gun emerged from the vehicle and ordered Mr. Graber to get off the bike. Only then did Maryland State Trooper Joseph D. Uhler identify himself as a police officer and holster his weapon.

The helmet cam captured video and audio of the encounter with the trooper; Mr. Graber posted the piece on YouTube one week later. He soon found himself the subject of a raid in which law enforcement officers seized computer equipment and the video camera from his home. Mr. Graber was indicted for violating a Maryland law that prohibits the audiotaping of a person without his consent. Between the wiretapping charges and the traffic violations, Mr. Graber could face up to 16 years behind bars.

Maryland law allows soundless videotaping of public activities as long as no one's reasonable expectation of privacy is breached. Videos made earlier this year of police officers beating University of Maryland students in the crowded streets after a basketball game pass legal muster under this theory.

People may be audiotaped without their consent only if they essentially forfeit their right to privacy. Tape-recording a neighbor's screaming match without his knowledge is permitted. However, all truly private conversations -- whether in person or over the phone -- may not be audiotaped unless all parties consent. Maryland law enforcement officials contend that Trooper Uhler was engaged in such a private conversation with Mr. Graber -- even though he was standing on the shoulder of a busy highway, carrying out his duties as a public servant and issuing a speeding ticket. This is not the kind of "private conversation" the law was meant to protect.

Maryland lawmakers should revisit the wiretap law to allow those directly involved in an official conversation with an on-duty police officer to record these conversations. Police officers should generally be notified when they are being recorded, but the officer's consent should not be required to proceed.

In the meantime, the absurd prosecution of Mr. Graber should be dropped, and prosecutors should remember that the Maryland law was meant to protect private citizens from intrusions, not police officers from public embarrassment.

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