Blog author: jballor
Monday, June 28, 2010
By

Gizmodo has an intriguing post about attempts to regulate and even criminalize photography. As Wendy McIlroy reports, “In at least three states, it is now illegal to record any on-duty police officer.” She goes on to detail some of the exceptions and caveats, noting,

The legal justification for arresting the “shooter” rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where “no expectation of privacy exists” (Illinois does not) but in practice this exception is not being recognized.

It is simply amazing the level of accountability and transparency that can now be achieved because of technological advancement. Certainly the Founders didn’t imagine that video recordings would ever exist, much less become important sources of evidence in legal cases.

Are there any compelling reasons that the burden of proof should be on the photographer rather than the law enforcement officer in these kinds of situations? McIlroy continues, observing “recordings that are flattering to the police – an officer kissing a baby or rescuing a dog – will almost certainly not result in prosecution even if they are done without all-party consent. The only people who seem prone to prosecution are those who embarrass or confront the police, or who somehow challenge the law. If true, then the prosecutions are a form of social control to discourage criticism of the police or simple dissent.”

Merely using a camera certainly doesn’t entitle you to do anything you want and expect protection under the First Amendment. But in clearly non-aggressive instances, where police are acting in public and there is the clear potential for recorded data to be used as exculpatory or convicting evidence, the public’s right to accountability and transparency should be respected. Again, writes McIlroy, “Cameras have become the most effective weapon that ordinary people have to protect against and to expose police abuse. And the police want it to stop.”

It’s of course understandable why officers wouldn’t like being recorded, any more than the average person would like to be recorded when doing their jobs. But the job of a law enforcement official isn’t the same as that of an accountant, an editor, or a janitor. It’s a public service position, and one that acts officially and with government sanction in public.

Maybe in our technological age law enforcement officials should increasingly expect to be recorded. Or at least always act as if what they are doing is subject to public scrutiny.


  • http://TheMetropolisTimes.com Adam

    I agree entirely. I rather thought there were some 1st Amendment cases that showed citizens have a diminished expectation of privacy in public places. Police officers and other state employees should – while acting in an official capacity – have an even smaller expectation than a civilian.

  • http://Zetify.com Melissa

    I find this very interesting. I definatly believe that there are strong arguments to both sides of the issue. An officer could argue that they are being recorded without consent and recording them on the job is unfair. But, I agree with the side that says that officers hold a higher level of power in society and with that they should also carry a higher level of accountability. Officers have the right to carry guns and use physical force if necessary, I think they should also face the music when they use that force unjustly, and the only way to know that is if they are recorded each and everytime.

  • Patrick Powers

    The good sisters told us “God is watching.”
    In most urban areas it’s hard not to be video taped or followed on one’s cell phone at some time. Cities, security agencies and private firms have video cameras in almost all commercial areas. Signal lights have video. Google has street view. Some police agencies want to have unmanned aircraft patrolling cities. Satellites further reduce privacy.
    The opportunity and expectation of privacy is dwindling, even for government officials.
    Britain is even more surveilled.

  • Neal Lang

    “I agree entirely. I rather thought there were some 1st Amendment cases that showed citizens have a diminished expectation of privacy in public places. Police officers and other state employees should – while acting in an official capacity – have an even smaller expectation than a civilian.”

    The First Amendment has nothing what so ever to do with privacy. In fact, the word “privacy” appears no where in our Constitution and the word “private” appears only to modify the word “property.”. Most of living Constitutionalists pin their “right of privacy” on the 4th Amendment’s “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” other in the prenumbra of rights contained in the 9th Amewndment. It is this “right of privacy” which creates the right to murder one’s unborn child.

    Of course, if the Framers envision some all-powerful “right of privacy” for “the People,” I am sure they were intelligent enough to express same plainly in the original document. It seems that the concept of “privacy” has been expanded in out time to mean “license.” I can assure you that the Framers had no intention to extend their meaning of “liberty” to include “license.”

    A person should have no expectation of “privacy” for public crime acts, including those discussed through through public utilities, such a the telephone and on the World Wide Web, especially when such communication is between themselves and know terrorists in the the Hindu Kush! The right to life of my family and myself trumps the terrorist’s right to plot in their deaths in private.

  • Neal Lang

    “Officers have the right to carry guns and use physical force if necessary, I think they should also face the music when they use that force unjustly, and the only way to know that is if they are recorded each and everytime.”

    While the criminal may use “force unjustly” free from having to “face the music” for their clandestine evil deeds? How is that just, especially for the victims of the criminals?

  • Neal Lang

    “The good sisters told us ‘God is watching’.”

    Unfortunately criminals don’t care. Vigliance is not necessary for the innocent, only for the evil doers.

    “In most urban areas it’s hard not to be video taped or followed on one’s cell phone at some time. Cities, security agencies and private firms have video cameras in almost all commercial areas. Signal lights have video. Google has street view. Some police agencies want to have unmanned aircraft patrolling cities. Satellites further reduce privacy.”

    Privacy to do what? Commit crimes? Only those guilty of criminal acts object to being monitored. And usually because it prevents them from getting away with their crimes. The entire 4th Amendment is only about seizures of persons “arrest” and evidence of a crime “property, and papers.”

    “The opportunity and expectation of privacy is dwindling, even for government officials.”

    Which is a good thing, as nothing disinfects better than “sunlight!”

    “Britain is even more surveilled.”

    Proving what? After all, the Constitution was never intended to be a “suicide pact!”

  • Patrick Powers

    I’d like to see Mel Gibson post about this topic here and now.

  • http://www.howtovanish.com Bill

    “Privacy to do what? Commit crimes? Only those guilty of criminal acts object to being monitored.”

    Mr. Lang, I’m afraid you adhere to one of the most pernicious fallacies of the modern era. Large organizations understand the need for segregation of duties in financial matters. At its most basic level, the person who has custody over the asset should not also be the one who does inventory counts of the asset. Combining these duties allows the person with custody to steal the asset, yet continue to count it as if it were present.

    Failing to separate these duties encourages fraud and embezzlement because human beings are imperfect and prone to temptation. Even many good people, seeing an opportunity to take some asset without being easily caught, will succumb to the temptation.

    The warrant requirement, which means that there must be a very high suspicion of criminal activity before the government may legitimately pierce the privacy of a person, is a way to segregate the duties of investigation and the decision to investigate. The policing agencies investigate, but they need an “impartial” person to determine whether an investigation is warranted. Otherwise, the police have the power to decide who they investigate, be it their ex wives, their political opponents or their landlords. This would intimidate and harass even innocent people. Failing to segregate these duties is encouraging fraud because human beings are imperfect and prone to temptation.

    Monitoring of all citizens by government without individual suspicion of a crime invites fraud. Therefore, all citizens who are innocent of all crimes should object to being monitored by government without a warrant for the safety of innocent people. This includes giving government access to privately owned monitoring systems.