When The State Breaks The Law

It is beyond depressing to see how Americans are steadily agreeing to abandon our Liberty and our Law to accommodate the wishes and policies of our own government. I was reading a post from No Silence Here this morning about how the TN Dept. of Environment and Conservation was breaking the law by recording conversations without telling those being taped.

It is illegal in Tennessee to tape someone without telling them you are doing so. Period, The End. (Please refer to the NOTE at the end of this post for the pertinent laws. Seems to me permission is required, but perhaps other arguments could also be made, depending on how a court might define 'reasonable expectation.')

And once this story was presented by a WSMV reporter, the TDEC issued 'new guidelines' to stop their illegal act. 'New guidelines', yeesh. So does that mean if you are arrested for stealing or for assault, all you need tell the investigating officers that you have adopted a 'new guideline' and will no longer do such a thing? They would simply say OK and you have a nice day?

Check out the following from the WSMV report:

"Is it good government to record the public without their knowledge?” [reporter Demetria] Kalodimos said.

“Well, our department is a regulatory agency and part of our charge is to enforce the law. So, I would say that, you know, in the exercise of carrying out our duties, that it is good government to do that. I see it as much ado about nothing,” said TDEC attorney Joe Sanders.

After Channel 4 started asking questions TDEC made a change.

Deputy Commissioner Paul Sloan issued a statement on Wednesday that said: “Because the issue has been raised, our department is committed to ensuring that as a matter of policy, we will disclose routine recording of conversations between members of our department and the public.”

Notice how the official says "since the issue has been raised". If the reports of their illegal taping had not been made public, then the illegal taping would continue. After all, it was routine, it was convenient, it made the agency's job easier to break the law. Their attorney views breaking the law as 'much ado about nothing.'

Again, what happens when you offer that defense if accused of breaking the law?

A comment on Mike Silence's post about the illegal taping is even more disturbing to me:

"Who cares if they records or listen to our conversations. . . I don't do anything illegal.

There is a bigger picture here. . . Finding illegal immigrants, illegal activities, illegal abuses (to woman and children), TERROR PLOTS, etc. . . If you look at the big picture and you are not conducting yourself in an inappropriate manner then you should not care of your conversation. The important issue is how it affects others and our country."

This mantra of 'only the guilty have anything to hide' has been often repeated in recent years, which is deeply deceptive and astonishingly cowardly, in my opinion. Abandoning your rights and liberties is necessary to achieve ... what? Obedience? Blind allegiance? A lack of concern for anyone except yourself?

Perhaps this view that the state is always innocent is one that has grown from Washington as states and their agencies mimic the philosophy that government is above the law. The ongoing debate to make permanent a law to provide warrantless wiretaps and surveillance seems to lack any sense of how the law is meant to function. The reason Congress is being pushed to adopt the law is that existing law has been violated:

"But we don't actually live in a country where private actors are permitted to commit crimes and violate laws provided that the President tells them that they should. The President has no greater power to authorize others to break the law than he does to break the law himself. Quite the contrary, Article II of the Constitution imposes the opposite obligation: "he shall take Care that the Laws be faithfully executed." Lawbreaking is still illegal even if George Bush says it should be done. Does that principle really need to be explained?"

-----

"A Congressional grant of immunity for past lawbreaking would amount to a bipartisan endorsement of Bush's illegal eavesdropping program. To remove consequences for illegal behavior is, by definition, to approve of that behavior. Laws with no consequences for violations are meaningless. And those who seek to shield lawbreakers from accountability are endorsing the lawbreaking."

Are we, as a nation, so eager to gain even the most illusionary moment of perfect safety from the unknown potential of possible attack, that we willingly surrender our basic fundamental structure of Law and Liberty?

For some time now, we have been casually accepting a fatal premise - that the state and the corporation have rights which trump those of the individual. "You're already being watched and tracked pretty much everywhere you go and whatever you do," I am told by usually very smart and informed people. To believe that is to believe you have no rights and no hope for rights, or privacy or self-determination. It is one of the most cynical ideas ever to be embraced by America.


NOTE: Here are the most applicable laws regarding audio and videotaping without consent which I could locate:

Tenn. Code Ann. § 39-13-601: A person who is a party to a wire, oral or electronic communication, or who has obtained the consent of at least one party, can lawfully record a communication and divulge the contents of the recorded communication unless he has a criminal or tortious purpose for doing so. Violations are punishable as felonies with jail sentences of between two and 12 years and fines not exceeding $5,000. Tenn. Code Ann. §§ 39-13-602, 40-35-111.

Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of "oral communication," Tenn. Code Ann. § 40-6-303.

Anyone whose communications have been unlawfully intercepted can sue to recover the greater of actual damages, $100 per day of violation or $10,000, along with punitive damages, attorney fees and litigation costs. Tenn. Code Ann. § 39-13-603.

Recording or disseminating a communication carried out through a cellular or cordless telephone, or disseminating the contents with knowledge of their illegal origin, without the consent of at least one party, can be punished as a felony with a potential prison sentence of between one and six years and a fine not to exceed $3,000. Tenn. Code Ann. §§ 39-13-604, 40-35-111.

It is a misdemeanor to photograph, film or observe a person without consent where there is a reasonable expectation of privacy, when the photographing, filming or viewing "would offend or embarrass an ordinary person" and is done for sexual purposes. Tenn. Code Ann. §§ 39-13-605, 39-13-607. Dissemination of a photograph or videotape taken in violation of these provisions is a felony. Tenn. Code Ann. § 39-13-605(2).