In addition to the first amendment rights we have discussed in class, we also have the right to gather and disseminate information of public interest. Filming is recognized as a means to gathers information but it is not (as we know) specifically outlined in the amendment. The fourth amendment protects citizens from government action on their person or property.
When it comes to filming the police, it is important to remember that police are people too, and by that I mean police are citizens who also have rights that need to be protected. Police do not lose their rights when they report to duty; a balance must be met between their rights as individuals and their responsibilities as public officials. As public officials, on-duty police have a diminished expectation of privacy. Police are already expected to report many aspects of their on-duty activities, including filming traffic stops. Since police wield exceptional power, it is necessary for society that an expectation of transparency is met. Police have access to security cameras, ATM cameras, and their own dash cams. Forbidding citizens to film police increases police power and possibility of misconduct.
WHO WATCHES THE WATCHMEN? Understanding a Citizen‟s Right to Film the Police
What Could Go Wrong?• 2007- Simon Glik, a lawyer, filmed police forcefully arresting a teenager in Boston. Glik was arrested for aiding the escape of a prisoner, disturbing the peace, and felony wiretapping. Charges were eventually dropped but his arrest made finding a job difficult. He sued for damages and won.• 2010- Anthony Graber, while riding a motorcycle, was forced off the road by a car. A man jumped from the car pulled his gun and demanded that Graber dismount before identifying himself as a cop. The interaction was caught by Graber‟s helmet camera and he posted it online. He faced 16 years imprisonment and his home was searched and property seized.
Constitutional Right to RecordFirst Amendment- Protects Freedom of Expression• Freedom of speech and of the press• The right to gather and disseminate information of public interest (Stanley v Georgia, Bartnicki v Vopper )Fourth Amendment- Protects Right to Privacy• Protects citizens from unreasonable, unwarranted search and seizure• Protects citizens from government action
Privacy v Transparency Police Concerns Citizen Concerns1. Officer or Witness Safety 1. Necessary Evidence1. Efficient Investigations 1. Deterring Police Misconduct1. Accurate Evidence 1. Direct Civic Participation1. Personal Offense 1. Police Legitimacy
“Contempt of Cop”• Obstruction• Interference• Disorderly Conduct• Failure to Obey an Officer• Resisting Arrest
Wiretapping and the 4 th1928- Olmstead v United States- Tapped a home phone • No search had occurred since there was no physical trespass • The interception of a conversation was not a seizure, since it‟s not tangible1967- Berger v New York- Bugged an office • 4th protects conversations • Therefore, capturing conversations constitutes a “Search"1967- Katz v United States- Tapped a phone booth • 4th protects “People not Places” • Established “Reasonable Expectation of Privacy”
Federal Wiretapping Law1968- Title III of the Omnibus Crime Control and SafeStreets Act (Wiretapping Act)• Prohibits the unauthorized, nonconsensual interception of "wire, oral, or electronic communications" by government agencies as well as private parties• Establishes procedures for obtaining warrants to authorize wiretapping by government officials• Regulates the disclosure and use of authorized intercepted communications by investigative and law enforcement officers
Wiretapping StatutesFederal • One party consent • Up to five years in prisonState • One or two-party consent • Twelve states-California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington-require the consent of all parties for you to record a conversation. • Open or concealed • Reasonable expectation of privacy
The Big Offenders• MD: Unless taking part, conversation is necessarily private • Only record if taking part and all parties consent• MA: If concealed, recording is illegal • Only record if open and all parties consent• IL: Expectation of privacy is irrelevant • Only record if all parties consent• WA: Privacy exception for police • All-party-consent requirement does not apply when a police encounter is recorded, police have diminished expectation of privacy
SousveillanceIs it worth it? • Are you a journalist, citizen activist, citizen journalist? • If not… • Arrested • Jail, fine • Trial • Legal feesWhere Am I? • State laws • Private place or public place, private property • Private conversation or public conversationHow will I? • Open or concealedDo I need audio? • Photos not subject to wiretapping laws
7 Rules for Recording the Police• Rule #1: Know the Law• Rule #2 Dont Secretly Record Police• Rule #3: Respond to "Shit Cops Say”• Rule #4: Dont Share Your Video with Police• Rule #5: Prepare to be Arrested• Rule #6: Master Your Technology• Always Passcode Protect Your Smartphone• Rule #7: Dont Point Your Camera Like a Gun
Questions?“Those of us who are public officials and areentrusted with the power of the state are ultimatelyaccountable to the public. When we exercise thatpower in public fora, we should not expect ouractions to be shielded from public observation. „Sedquis custodiet ipsos cutodes‟ („Who watches thewatchmen?‟).”- Judge Emory Plitt Jr., Harford County Circuit Court