It comes as little surprise that the laws surrounding electronic recording trail desperately behind the evolution and dispersion of recording technology. Unlike the rapid advance of innovation, the legislative process is slow, and often guided by those who neither understand nor appreciate the interaction of technology and democracy.
Nowhere has this been more evident than in the attempt to criminalize and prosecute recording of on-duty police officers. From misappropriating outmoded wiretapping laws or outright banning the recording of cops, several legislatures and police jurisdictions across the country have tried to subvert our rights as citizens to monitor law enforcement. Luckily, a number of court rulings over the past couple of years have chipped away at the perception that filming the police is illegal. Read on for a guide to the state laws that govern recording in public (including interactions with police), as well as a run-down of recent rulings.
First, it’s important to note that the lion’s share of laws concerning filming in public apply only when recording audio — most statutes fall within “wiretapping” provisions originally intended to cover recording telephone conversations, which have been extended to include all recordings of interactions.
The 50 states can be divided into two camps: “one-party” states and “all-party” states. In the 38 “one-party” states (yellow in the infographic above), the law requires the consent of one of the recorded parties in a conversation, just as under federal law. That is, if you’re involved in a conversation, including with a police officer, your consent is sufficient to openly record the interaction legally. You cannot be arrested for filming police in these 38 states, as long as you do not interfere or obstruct the work of law enforcement in the process. While the definition of “interference” remains to be clearly established in most states (in a recent Austin case, that call was up to the officers rather than a set policy), that’s a separate issue. If you’re in one of the 38 “one-party” states, the law is clear: film away! [Just do so openly — secret recording via hidden camera falls under a different set of laws entirely.]
If you’re in the 12 “all-party” states (gray in the infographic above), the law is less straightforward. These states require the consent of all persons involved for a legal recording. However, ten of these states (all but Massachusetts and Illinois) have clear “expectation of privacy” exceptions to their laws. Under these provisions, police have no expectation of privacy while on-duty, so their consent is not legally required to openly record interactions with them. In a 2010 ruling, for instance, a Maryland judge dismissed felony charges against a man who filmed a traffic stop and posted the interaction on YouTube, writing that
Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.
So if you’re in the ten “all-party” states with privacy expectation provisions (all but MA and IL), film away! [Again, do it openly.]
Now, Massachusetts and Illinois have some of the thorniest laws when it comes to filming cops, since their legislatures have explicitly criminalized recording law enforcement. Over the two years, though, both statutes have been challenged in court, and neither passed constitutional muster.
In April 2012, the First Circuit Court of Appeals ruled against the Boston Police Department, who arrested Simon Glik in 2007 after he filmed cops as they made an arrest. The court firmly established that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The City of Boston settled with Glik for $170,000 in damages and legal fees. According to Gizmodo, BPD now directs its officers not to arrest people for openly recording them in public.
In May 2012, the Seventh Circuit Court of Appeals similarly invalidated the Illinois statute. The court sided with the ACLU, which challenged the ban on openly recording police as unconstitutional under the First Amendment. Its ruling noted that the statute was overly broad, and required considerable revision to “avoid [unconstitutional] trampling on speech and press rights.”
Across the country, precedent continues to cement the constitutional right of citizens to openly record their interactions with police. Recording law enforcement is a critical means of exercising civic oversight on a powerful group of public servants. The knowledge that their actions (both praiseworthy and criminal) can be widely disseminated is an important incentive for cops to serve honorably. If you’ve been harassed, intimidated or arrested for filming cops, REPORT IT. CopBlock and the ACLU have resources to help, and a nationwide network of local affiliates to support your case.
Know your rights. Protect your rights. And keep it rolling.