In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.The post refers to Illinois, Maryland and Massachusetts, where people have been convicted for recording police officers on duty. These were not arrests for surreptitiously recording cops either, we're talking video cameras in hand, recording their own arrest, or their loved ones'. The very idea that it could be a crime to record cops acting out in the open, where there is no "expectation of privacy" (the relevant legal term), while they are speaking at a volume that is naturally audible, is so absurd it defies words.
The statutes being used to make these arrests are wiretapping laws, at least some of which require both parties' consent before recording. Of course, police record their interactions with citizens on dashboard cameras, for instance, all the time, and strangely the wiretapping laws do not prohibit that. (They were, in fact, specifically written so police could not simply tap people's phones in a criminal investigation. How's that for irony?) So the state ACLU chapters are coming to the aid of those incarcerated for exercising their most First Amendment freedom to hold government accountable. The ACLU of Maryland called the use of these wiretap laws "abusive," further stating:
“Police officers doing their jobs in a public place, such as an interstate highway, cannot reasonably claim that their communications are private,” said ACLU [of Maryland] Legal Director Deborah Jeon. “This is especially true for highway stops, since many police departments – including the Maryland State Police – record the stops themselves, thus negating any possibility that the officer would reasonably believe the conversation to be private.”The ACLU of Illinois has also filed federal suit challenging Illnois' statute under the First Amendment. The ACLU of Illinois is arguing both the individuals have a right to hold government accountable, and that public interest groups such as themselves have a right to collect data about police in order to petition the government for redress about police misconduct:
The ACLU recently felt the limitation of this law. The media reported that Chicago police were conducting random searches of bags and backpacks of individuals who were passing by Chicago beaches on the pathway that runs adjacent to the beach and Lake Shore Drive. When the ACLU investigated, it could not use widely available audio/video recording devices - like the smart phones carried by millions of Americans - to document police activity and conversations, because doing so would risk arrest or prosecution.The right to petition the government is one of the rights specifically protected by the First Amendment, so in addition to the free speech rights implicated by the ability to record freely, the infringement of the ability to actually petition the government to change police practice is another legitimate legal claim.
The problem is only growing, as police become more routinely embarrassed on YouTube. Recently, a woman in North Carolina was convicted by a judge of videotaping an arrest from her front porch. Ironically, the arrest she was videotaping was not even her own, yet she was charged with "resisting arrest." Carlos Miller, whose Photography Is Not a Crime blog has been at the forefront of this issue from the beginning, is now organizing the opposition against her reelection campaign, which is only proper given the utter disregard for the Constitution she demonstrated.
The problem is very real. Police abuse their power constantly, as any group of human beings vested with such power naturally will. It is only our ability to record said interactions that puts pressure on them to stop. Consider this incident that Digby recently wrote about, where a man was tased three times in his own home, while the cop yelled "stop resisting" over and over. Seriously, watch this video - it's disturbing, yet surprisingly common. If someone could be arrested for videotaping this, on their own front porch no less, how are we supposed to stop this from happening? Fact is, the Constitution protects citizens against these government abuses - it was kinda the point of the Bill of Rights.
This attempt to prohibit photography is actually a lot more widespread, and really grew in the name of anti-terrorism after 9/11. The first reports I heard about/experiences I had with cops stopping people from taking photographs were of buildings several years after 9/11, claiming that photos of buildings would aid terrorism, despite the fact that they are already widely available and the people stopped were obviously tourists. Then Dick Cheney, in his paranoid, secrecy-obsessed world, made sure Google Earth could not show his private residence. Finally, even today places all around the world are acting like the PATH train system in NY, prohibiting all photography that "could be used to aid in the planning of an attempt" at a terrorist attack (actually, their policy is even more restrictive than that, and almost certainly unconstitutional).
The War on Photography is pretty sickening, and yet, because it is a somewhat abstract issue, it is not generating the outrage it should. In the age of cameras on each of our phones, with automatic timestamps, photography is the best proof we have of what goes on in our daily world. A more transparent society is inherently more honest and more democratic. This is one issue where the law is actually pretty clear, though it is being distorted as we watch. It's also not going away any time soon. If you're interested in reading more, I highly recommend Photography Is Not a Crime, which I repeatedly seem to find myself reading. I'm sure you haven't heard the last of this in this blog either.
