Question: If the parties being recorded have to consent, does that mean if I don’t consent to being photographed or videoed by the ubiquitous street cameras operated by the city that I can sue and/or have the operators and city officials who had them installed arrested?

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. 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.
Almost without exception, police officials have staunchly supported the arresting officers. This argues strongly against the idea that some rogue officers are overreacting or that a few cops have something to hide. “Arrest those who record the police” appears to be official policy, and it’s backed by the courts.
When the police act as though cameras were the equivalent of guns pointed at them, there is a sense in which they are correct. Cameras have become the most effective weapon that ordinary people have to protect against and to expose police abuse. And the police want it to stop.

Found by Brother Uncle Don

  1. Hmeyers says:

    Let it be illegal.

    They might be able to harass you, but they can’t stop the video. And illegally recorded video is still protected by free speech.

    The government is free to make whatever laws they choose, just let them try to enforce them when they are not aligned with the public good.

  2. TThor says:

    It is the same situation in China, Myanmar and North Korea. Definitely was a big no-no to take pictures of military and police in the old USSR, as well as East Germany. Trust me, I know, I was there. Other than that, I think it is pretty OK to take pictures of whatever you like. To be an amateur photographer is still legal in most countries.

    Seriously, and the US of all nations… how come you fall into yet another trap of totalitarianism? You were supposed to be the good guys, representing freedom in general; free speech, democracy and all. And now this, and no one cries out… mainstream media? Anyone?? No???

  3. bobbo, int'l pastry chef and Supreme Court reader says:

    Where is the ACLU when we NEED them?

    This actually shakes me to my core. People are not perfect. In general, you have to assume in any system of government that people will screw up and that groups have their own counter interests at play and so we have a general status of low level corruption==but generally it is manageable and finding an alternative absent just wishing for a perfect world is difficult.

    Real problems arise though when the normal “checks and balances” are removed===and that is what is happening here. “Normally” the courts or DA act as a check on the Police. And normally the leglislature will act as a check on the courts, DA, and police. So, a bad practice develops and the pendulum swings back and forth. Disruptive, but justice/freedom have a certain gravity.

    I don’t see that happening here.

    So, yea–the ACLU needs to find/stage a best case scenario and take it on up to the Supremes. Lib and Con judges alike should support the first amendment, common sense, and good government?

    My fingers are crossed.

  4. Benjamin says:

    #23 I read this article on Reason Hit and run which is a Libertarian blog. It is interesting that you aren’t for cops arresting people for taking pictures of the police since you hate Libertarian issues.

    I wonder why police do not want transparency. If police aren’t doing anything wrong, then a little video tape can’t hurt them.

  5. bobbo, libertarianism fails when it becomes Dogma says:

    Benji–when are you going to learn to read?

    Read my nom de flame until you can identify what it is “I hate.”

    Go ahead. Not that many words to stumble on. I’ll give you as many “guesses” as you need==but it really shouldn’t be a guess?

  6. Rabble Rouser says:

    Check out “The Shock Doctrine,” by Naomi Klein. They get things like this passed right after an incident like 9-11. It was the perfect time for them to use a “crisis” to take advantage of people and pass these Draconian measures.

  7. Lieberal Douchebag says:

    Shut up slaves!

  8. GetSmart says:

    So, I guess if you are going to have a video camera, it’d better be mounted on a 12 gauge riot-pump shotgun. Has it really gotten to that point now?

  9. Rob (AU) says:

    Just one more reason for me to stay as far away from the USA as I can!

    I tend to tell abusive officials where to get off, but over there in the USA I could be locked up for a very long time, especially as the US consul has advised me that the constitution ONLY protects US citizens, not aliens, legal or not!

    So, if your own people are being abused, what chance would I have as a non-citizen? About ZERO I think!

  10. The Aberrant says:

    “I think the defense attorneys should make real pests of themselves,”

    … We’re trying!

    “Where is the ACLU when we NEED them?”

    The problem of the ACLU – and I think this is a valid question – is that their resources are very limited, and they usually only jump on when there’s a CLEAR ISSUE, or at least, a case that’s PERFECT for their cause. It’s rare that such a thing happens. Yes, the police are clearly stepping out of bounds in these cases, and more often than not an “arrest” is followed by a swift tune-up, but cops aren’t dumb, and they’re even better liars. Bad liars get drummed out of the police force quickly, or kept to desk duty where they can’t harm anything by fumbling around. So for the ACLU to come in, mostly as an outside agency interfering in a criminal case (since 99% of these cases end up in a criminal session, which the ACLU does not usually do), it’s difficult for them to directly intervene.

    I’m sure, however, once the issue starts to hit the appellate courts (which should happen soon), then we’ll start to see more ACLU involvement in terms of amicus briefs and direct appellate intervention.

  11. bobbo, waiting for the end of time says:

    Aberrant–I “sense” you agree this issue is VERY important and should draw the last resource of the ACLU when the right case is presented. This is more than police misconduct==it is the police acting pursuant to the law (in three States.) Civil Liberties, something the ACLU is concerned about, flow from having a police force that is appropriately limited in its police powers. Acting in secret without review is not part of that limited and appropriate role.

    If I had the money, I’d be contributing to the ACLU. Until such time, I can only give them my moral support (and direction).

  12. DaveO says:

    And they also have the cams mounted on tasers so the boys back at the station can have a good laugh.

  13. GregAllen says:

    >> Anon said, on June 7th, 2010 at 2:41 am
    >> Three VERY liberal states. Figures. Liberals hate the Constitution.

    What a jackass thing to say — especially after conservatives collectively crapped on the constitution in their panic after 911.

  14. Buzz says:

    Officers behaving badly are fair photo subjects. Their color of authority does not preclude their behavior being documented by anyone who wishes to make such a recording.

    A recording of suspected poor behavior is a recording of public officials acting in public. Gray area: Cops on private property. But the cop in question is not his own personal private property. His public role trumps his personal privacy. Hands down.

    They may, however, issue an order to share the footage with the Police Department legal staff, and may stridently request that of the photographer, to prevent legal blindsiding.

    It’s going to take a Supreme Court case to establish this, I think.

  15. deowll says:

    #9 Actually Dallas its just the Nanny State in action. They have the same thing in England and no doubt other Nanny States.

    Let me explain how the game works. You want to do testing that basically shows that everybody is learning more now than in the past and keep doing this year after year because the law says you must. People aren’t getting smarter so how do you do that?

    After some point I think you do that by only allowing government employees and students to look at the tests then firing any government employee that admits they saw anything at all relating to the test much less noted something they thought was peculiar or wrong.

    Since everyone that might be in a position to actually know anything either doesn’t or is afraid to admit they saw something questionable you can do what you want to get the scores you need and if some of the test was pure crap who is going to be the wiser? The people scoring the things can do anything.

    Let me explain how I think you can tell which states are _extremely_ corrupt. Any state that has a law saying you can’t record officers doing their jobs in public places is on my list of extremely corrupt states.

  16. GregAllen says:

    >> # 34 Buzz said, on June 7th, 2010 at 6:48 pm
    >> It’s going to take a Supreme Court case to establish this, I think.

    Police are public servants serving the taxpayer oten working in public spaces.

    It seems obvious that video taping of them should be allowed but you are probably right about the Supreme Court.

  17. Uncle Patso says:

    # 35 deowll:
    “[...] Any state that has a law saying you can’t record officers doing their jobs in public places is on my list of extremely corrupt states.”


    When cameras are outlawed, only the police outlaws will have cameras.

  18. CrankyGeeksFan says:

    Make video recorded on public cameras available as public record.

  19. BmoreBadBoy says:

    If you’re going to record the police, use a camera that can stream to the internet via qik. That way you don’t lose your footage when they confiscate your equipment and arrest you.

  20. Soc4life says:

    That’s not right. It’s so stupid, that’s like us saying we want places to stop putting up cameras so they can’t catch us doing something illegal. If the cop is truely only doing his job, he wouldn’t care if someone was recording him. For instance, a store sets up cameras to assure that their merchandise isn’t stolen, right? So how is it wrong for someone to want to have a video of the police arresting them, to make sure they don’t abuse their rights to a point where it’s considered assault? They are the same thing, so I think people have every right to record videos of stuff like that.