Information Might "Want To Be Free"
But, in some states, you can be jailed for videotaping the actions of a police officer. Wendy McElroy writes:
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 (Illinois, Massachusetts, and Maryland), it is now illegal to record an on-duty police officer even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.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.
Massachusetts attorney June Jensen represented Simon Glik who was arrested for such a recording. She explained, "[T]he statute has been misconstrued by Boston police. You could go to the Boston Common and snap pictures and record if you want." Legal scholar and professor Jonathan Turley agrees, "The police are basing this claim on a ridiculous reading of the two-party consent surveillance law -- requiring all parties to consent to being taped. I have written in the area of surveillance law and can say that this is utter nonsense."
The courts, however, disagree. A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler's license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.
In 2001, when Michael Hyde was arrested for criminally violating the state's electronic surveillance law -- aka recording a police encounter -- the Massachusetts Supreme Judicial Court upheld his conviction 4-2. In dissent, Chief Justice Margaret Marshall stated, "Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals...." (Note: In some states it is the audio alone that makes the recording illegal.)
The selection of "shooters" targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate.
Glik captured a police action on his cellphone to document what he considered to be excessive force. He was not only arrested, his phone was also seized.
On his website Drew wrote, "Myself and three other artists who documented my actions tried for two months to get the police to arrest me for selling art downtown so we could test the Chicago peddlers license law. The police hesitated for two months because they knew it would mean a federal court case. With this felony charge they are trying to avoid this test and ruin me financially and stain my credibility."
I wonder what police will do about their own dashboard cameras. Or security surveillance tapes.
Okay, no, I don't.
Simple double standard.
-Jut
JutGory at June 3, 2010 7:27 AM
Too many off duty Chicago police have been caught beating people up and protected by the blue wall of silence.
Why don't they want you to record them?
I think it's because they want to have the freedom to do whatever the hell they want without accountability. This is nothing but intimidation.
I say that as someone with cousins who are chicago cops, a father who was a prosecutor and friends who are judges. I know they are not all evil, but enough with a voice in the Illinois general assembly ARE evil.
According to Balko they actually removed the exemption for expectation of privacy in 94 after a few cops got in trouble. So that proves it: the very reason there is no expectation of privacy exemption is because the state was embarrased by police voilating someone's rights on camera.
Illinois is also one party when it comes to 2 private citizens. So you can record a private citizen in public without his consent, but not cop. nice huh?
plutosdad at June 3, 2010 8:29 AM
What better way for police to cover their asses than to punish anyone who might have incriminating evidence against them. I knew that recording in a police station was illegal but this is ridiculous. Im not glad to live in MA with a law like this.
Suvorov at June 3, 2010 8:38 AM
More and more governments are proving that they are in the business of protecting their own at the expense of the people who pay their salaries. I am afraid this is not going to end well.
parabarbarian at June 3, 2010 8:39 AM
This looks like a great case for the EFF. The police are public servants; the people should have the right to monitor them while at work. Because of the great power vested in police - to take away freedom and even life - they must be subject to fair public scrutiny.
Christopher at June 3, 2010 8:49 AM
Amy Alkon
http://www.advicegoddess.com/archives/2010/06/03/police_shooting.html#comment-1720566">comment from ChristopherI want the police monitored, and, from my porch, I taped a nighttime traffic stop outside my house that seemed to get a little weird (in the end, nothing untoward seemed to be done). I'd like to see more people, not fewer, doing that.
Amy Alkon at June 3, 2010 8:56 AM
Android phones and Iphones to the rescue!— Soon if not already, people will be uploading video clips from their daily life in the same way they send tweets. We'll have favorite people to follow, like Instapundit and Balko (and others).
These clips will go to the internet LIVE... But then they'll be sitting on servers all over the world, waiting for us us to come home from work and see what happened to our friends and celebrities that day. If you shoot video of misbehavior, you don't have to worry that your friends might not be watching in that moment, or be read to "take the call".
Confiscating the cameras won't help.
The bad news is that handheld video gives me a stomach ache. The worst thing to happen to the visual arts in the last 30 years was the popular presumption that shaky video was stylish and fraught with meaning & authenticity.
Crid [CridComment at gmail] at June 3, 2010 11:55 AM
"These clips will go to the internet LIVE... "
Yes, and anonymously in those states that criminalize it. If the courts are too stupid to see common sense, the public can judge for itself.
Jim at June 3, 2010 1:33 PM
The other problem is that the "licensed" (about to be literally true soon) media is all for these prosecutions, because it supports their contention that they enjoy unique rights under the First Amendment not granted to ordinary citizens. There are going to be a whole bunch of politically powerful groups lined up to make sure this happens.
Cousin Dave at June 3, 2010 1:50 PM
> and anonymously in those states
> that criminalize it.
Yes... This is my prayer, too. Nobody likes spam, and nobody likes viruses... But these bitter teenage boys working away in their mother's basements to overwhelm these defenses have a role to play in making our culture work correctly.
Crid [CridComment at gmail] at June 3, 2010 2:35 PM
Most disturbing law i have heard about in a year, and that's a tough bar to leap. Evil fears the truth: this admits right up front they know their cops are untrustable thugs and removes any civilized recourse to defend ourselves from them. I think i will write to my congress critter in Denver and ask it to consider a law to pre-emptively act and preserve our right to camera self-defence.
vermindust at June 3, 2010 4:15 PM
Android phones and Iphones to the rescue! - Crid.
I hope they help, but I am seeing more and more evidence that the US government isn't OUR government, in any way, shape, manner, or form.
William (wbhicks@hotmail.com) at June 3, 2010 6:17 PM
So.
What happens when the Google Maps guy goes by, Officer?
Radwaste at June 3, 2010 7:04 PM
Have any of you heard about the DISCLOSE bill they are trying to rush through before November elections.
If you are a "media company" commenting on politics you are okay. If you are a blogger -- you would need to disclose that you have not been compensated to blog or comment on politics.
And the FTC is seeing if they can re-implement the Fairness Doctrine under another name.
Jim P. at June 3, 2010 7:16 PM
No Jim that is the first time ive heard about this bill. I guess there trying to pass it quickly and quietly because they know it will be massively unpopular.
You know instead of voting for politicians that dont have any obligation to deliver what they promised id like to be able to vote on bills instead. Why cant we decide new laws by popular vote? Most of the politicians dont even read bills before passing them so i cant see things going worse.
Suvorov at June 3, 2010 9:11 PM
All please note that a still photograph is merely an excerpt of a video.
Orwell was just early.
Radwaste at June 4, 2010 1:54 AM
About "Disclose" - does anyone have the actual bill number? I didn't see it at the link.
THOMAS, the Library of Congress Web site, is the definitive place to look this stuff up.
Radwaste at June 4, 2010 2:08 AM
"Why cant we decide new laws by popular vote?"
If you went to the LOC Web site, you'd see why. You don't have the time to read hundreds of bills, and you don't have the staff to do any research for you.
And don't push your luck. You don't actually have a Constitutional right to vote for the President.
Radwaste at June 4, 2010 2:10 AM
"You don't have the time to read hundreds of bills"
Its not like the guys passing those bills read them either.
Suvorov at June 4, 2010 2:21 AM
No valid reason for it to be illegal; this is a pure totalitarian attitude - the state is just showing its true colors and true nature.
Lobster at June 4, 2010 6:34 AM
So: bill number? Anyone? Bueller?
Radwaste at June 4, 2010 2:55 PM
So: bill number? Anyone? Bueller?
The Gavel with links.
Jim P. at June 4, 2010 6:24 PM
The liberal view
Jim P. at June 4, 2010 6:26 PM
Of course, the standard justification for every increase in state intrusion into people's lives is 'well, if you've got nothing to hide, you've got nothing to worry about'.
The same can be said about police being filmed or monitored while carrying out their duties: 'if you've got nothing to hide, you have nothing to worry about'.
Nick S at June 5, 2010 4:19 AM
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