It has never been easier or more dangerous to record the police.
University of Pennsylvania law professor Seth Kreimer, author of a 2010 paper in the Pennsylvania Law Review about the right to record, says such legal vagueness is a problem. Citing decisions by three federal appeals courts, Kreimer says the First Amendment includes the right to record public events. “The First Amendment doesn’t allow for unbridled discretion” by police, he says, “and it’s particularly concerned with clear rules when free speech rights are at stake. Even if there is a privacy interest here, people have to know when they’re going to be subject to prosecution.”
The ambiguity may be of dubious constitutionality, but it’s common. In Massachusetts, the only all-party-consent state aside from Illinois that does not have an expectation-of-privacy provision in its wiretapping law, the Supreme Judicial Court in 2001 upheld the conviction of a man who surreptitiously recorded police officers during a traffic stop. The court ruled that the wiretapping law granted no exception for citizens recording police officers.
The state’s lower courts have interpreted that ruling as applying only to covert recordings of police: People get convicted of secretly recording police, while charges against people who record police openly have generally been thrown out. But arrests and threats of arrest continue under both scenarios. In January 2010, the The Boston Globe reported that it was becoming increasingly common for Massachusetts police to threaten or arrest even people who record them openly. State Attorney General Martha Coakley told the paper her office took no position on the arrests, or on the distinction between open and secretive recording.
In general, Cassilly says, police actions in front of large crowds probably can be recorded without breaking the law, but privacy claims are stronger when few people are around. But this standard undermines the use of citizen video as a check against police misconduct. Police actions in front of large crowds will naturally have a lot of witnesses, a fact that not only deters misconduct but makes video evidence less important. But what if a police officer is harassing or intimidating someone when there aren’t many witnesses, such as during a traffic stop or on an empty street at night? Would it be a felony to record the interaction? “I’m not going to respond to any hypothetical scenarios,” Cassilly says. “It just depends on the circumstances.”
In July, after I spoke with Cassilly, the Maryland Attorney General’s Office responded to a state legislator’s inquiry by issuing an opinion that said “it’s unlikely that most interactions with police could be considered private, as some law enforcement agencies have interpreted the state’s wiretapping act.” But that opinion was only advisory, and Cassilly announced in a subsequent radio interview he had no intention of abiding by it.
If the vagueness and inconsistent application of these statutes weren’t bad enough, there is also a clear double standard when it comes to the consequences of misunderstanding what the law requires. Citizens who do not know about wiretapping laws face arrest, felony charges, and jail time. Police and prosecutors who wrongly threaten, detain, arrest, and charge people based on a misinterpretation of these laws are rarely disciplined, much less subjected to civil liability or criminal charges. Police are protected by qualified immunity, which makes it difficult to win damages for an unlawful arrest. Prosecutors are protected by absolute immunity, which makes it nearly impossible.
Link: http://reason.com/archives/2010/12/07/the-war-on-cameras/