Expectation Of Privacy, Perhaps; But Reasonable?

One of my former media law students tipped me off to this story about police in Maryland arresting a motorcycle rider for “illegally” recording them as they pulled him over for a traffic stop. The motorcycle rider, Anthony Graber, had a camera on his helmet so he could video his rides. The camera was rolling when police pulled him over and gave him a ticket for speeding. Graber later posted the video on YouTube. And that’s when things got interesting. Six police raided Graber’s parents’ house (where he lived with his wife and two kids) and arrested him for violating Maryland’s wiretap laws. Maryland requires that all parties to a conversation consent to having that conversation recorded. Most states require only one party to consent. But the law also requires that there be a “reasonable expectation of privacy” in the conversation for there to be a violation. The question here is whether a police officer making a traffic stop has a reasonable expectation of privacy in that encounter. Again, the key word is “reasonable.” For example, I may have an expectation that Jessica Alba would find me attractive if we ever met. But it’s debatable whether that expectation is reasonable. Here, I’m not sure how a state official, conducting public business on a public street can have a reasonable expectation that the encounter is “private.” And there are policy reasons – like preventing an abuse of power – that support the notion that it shouldn’t be private. We will see. And I suspect Graber tends to drive the speed limit.