From: "Thomas C. Allard" <m1tca00@FRB.GOV>
Date: Sat, 10 Aug 1996 05:26:59 +0800
To: cypherpunks@toad.com
Subject: Re: Boom!
Message-ID: <9608091717.AA14737@bksmp2.FRB.GOV>
MIME-Version: 1.0
Content-Type: text/plain

tcmay@got.net (Timothy C. May) said:

> What recourse does he have that camera crews were invited in on the 
> searches?



Subject: CBS Liable for Filming Search
From: dante@halcyon.halcyon.com (Dan Tenenbaum)
Date: Fri, 8 Jul 94 15:52:58 EDT
Article: 28633 of rec.arts.tv
Followup-To: alt.prisons
Newsgroups: alt.prisons,misc.legal,alt.politics.usa.constitution,alt.privacy,rec.arts.tv
Organization: mellow owl mailing field
Xref: glendora alt.prisons:817 misc.legal:28311 alt.privacy:7678 rec.arts.tv:28633

[Paul Wright, the imprisoned editor of Prison Legal News, sent me the
following and asked me to distribute it widely on the the net because
there has been no coverage of this in the mainstream media.
Followups to alt.prisons because I read it. Nyah.
Typos are mine.
The article will appear in slightly different form in the next PLN. PLN
is available from P.O. Box 1684, Lake Worth, FL 33460. $12 for
subscriptions and $1 for a sample copy.
Dan Tenenbaum (dante@microsoft.com or dante@halcyon.com)]

CBS Liable for Filming Search
	In a landmark decision a federal court in New York has ruled
that a CBS film crew and Secret Service agents are liable for filming and
broadcasting a search of a private citizen's home. It is the first reported
court decision to hold a television broadcaster liable for accompanying
police agents on a search and filming it for the broadcast. Anyone who
has watched "Cops," "Hard Copy," "America's Most Wanted," or any
of the "real life" cop shows has seen the degrading and propagandistic
manner in which the victims of police repression are portrayed. The
broadcasters and the police can be sued and held liable for such
actions.
	In 1992 Secret Service agents obtained a search warrant
from a federal court authorizing the search of an apartment shared by
Babatunde Ayeni, his wife Tawa, and small son Kayode, seeking
evidence of a credit card fraud operation. At 6PM on March 5, 1992,
several Secret Service (SS) agents forced their way into the Ayeni
residence announcing they had a warrant to conduct a search and
ask questions. Only Mrs. Ayeni and her son were home at the time. At
about 8:15 four more SS agents arrived with a film crew from the CBS
news program "Street Stories." The CBS film crew was never identified
as CBS employees. The CBS crew followed the SS agents and taped
them as they searched the apartment. They took closeup shots of the
home's interior, its closets, personal letters, family photos, etc. In the
apartment's foyer an SS agent was interviewed about the modus
operandi of people who commit credit card frauds and the tools of
their trade. During this tape sequence the SS agent implied the
complicity of the other residents of the Ayeni apartment. No
evidence implicating the Ayenis in any illegal activity was found
during the search. One of the agents was filmed expressing his
disappointment.
	The Ayenis filed suit against the federal agents as well as CBS,
contending that the search and its filming violated their fourth
amendment right to be free from unreasonable search and seizure. In his
opinion Judge Weinstein agreed with the Ayenis. The defendants sought
qualified immunity, which the court denied.
	Under the doctrine of qualified immunity government agents are
entitled to be free from liability for money damages even if they violate
constitutional rights as long as the right is not "well established" so that
a person of reasonable intelligence would know that the right violated
was recognized. In the case the court held that any reasonable police
agent would have known that it is unconstitutional to have private
citizens accompany them on a search to film and broadcast the search.
The court relied on 18 U.S.C. sec. 3105 which requires that search
warrants be served by an official authorized to serve the warrant and
by no other person unless their assistance is required in conducting the
search, i.e. an accountant, forensic expert, etc., depending on the
nature of the offense being investigated. Thus, the SS agents should
have known that having a film crew taping their activities was illegal.
Courts have previously held that taking photos is a "seizure" within
the meaning of the fourth amendment. CBS also claimed qualified
immunity from suit. The court notes that private entities are not
entitled to qualified immunity from suit, it only applies to government
actors.
	The court used harsh language in condemning the actions by
the SS and CBS. "The search warrant was issued to agent Mottola and
other agents of the Unites States Secret Service for precise and limited
purposes. It authorized their entry into the Ayenis' home only to search
for items related to credit card fraud. Agent Mottola's act of facilitating
the CBS camera crew's entry into the apartment and its filming of the
search exceeded the scope of the warrant. It was allegedly in clear
violation then well [sic] established fourth amendment principles.
...it is the equivalent of a rogue policeman using his official position
to break into a home in order to steal objects for his own profit or
that of another."
	For immunity purposes it would be "...grossly unreasonable
for a government agent not to have known that the presence of
private persons he invited in so that they could titillate and entertain
others was beyond the scope of what was lawfully authorized by
the warrant.
	"CBS had no greater right than that of a thief to be in the
home, to 'capture' the scene of the search on film and to remove
the photographic record. The images, though created by the camera,
are a part of the household; they could not be removed without
permission or official right....The television tape was a seizure of
private property, information, for non-governmental purposes."
	It is entirely possible that litigation by the victims of this type
of police and media activity may be able to halt the spread of
"police TV." Findings of liability against both police and the broadcaster
will see to it that police activity is not broadcast to "entertain and
titillate." So if you've been filmed against your will during a police
search you too can sue for an invasion of your privacy and your
fourth amendment rights. The court decision is reported at:
Ayeni v. CBS, Inc., 848 F. Supp 362 (ED NY 1994).






rgds-- TA  (tallard@frb.gov)
I don't speak for the Federal Reserve Board, it doesn't speak for me.
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