FAQ: When Can You Capture Cops on Camera?-gctid46025

[Ajamu]

FAQ: When Can You Capture Cops on Camera? | PCWorld


Can you photograph the police during times of civil unrest? At a  crime scene? What are your rights, and the responsibilities of the  police?

                                                         By Rachel Sadon, PCWorld                             Sep 19, 2011 9:00 pm        
                                                                                                Bay Area Rapid Transit's August shutdown of wireless service  to squelch a demonstration in San Francisco raised anew questions about  the use of tech in the face of authority. In this first installment in a  series of FAQs, we discuss your rights when photographing police.

 With the click of a button, anyone with a current cell phone has the  ability to act as a check on the cops. Low-resolution photos and video  taken on the fly may fall short of artistic standards, but they  routinely exonerate the innocent, prove guilt, and even publicize police  wrongdoing.

 Though the gadgets people carry in their pockets are profoundly empowering, few phone and camera owners are fully aware of their rights--and  this is especially true when it comes to capturing police on film. In  fact, many law enforcement officials themselves are unclear about what  is permissible.

 Though by no means a comprehensive overview, here some basic rules of the road for catching police activity in your viewfinder.

 Do you have the right to photograph police officers in public?

 Yes. Taking pictures (still images, not video) of things that are  visible in public spaces is a constitutional right guaranteed by the  First Amendment. This includes Police Presence in Petworth | Flickr - Photo Sharing!@@AMEPARAM@@http://farm2.static.flickr.com/1092/1438472654_921ba668f3_m.jpg@@AMEPARAM@@1438472654@@AMEPARAM@@921ba668f3 and other law enforcement officials in public.

 Can you take pictures while police officers are making an arrest or during civil unrest, such as a protest or riot?

 It is completely within your rights to photograph police officers conducting their duties at an incident scene, including while making arrests. Police officers may legally ask you to stop only if your activities are impeding law enforcement activities.

 Though the law is clear and courts have consistently upheld these rights, in numerous cases individuals have been illegally harassed, detained, or arrested for taking pictures of police officers (as well as other legally permissible subjects, such as transportation facilities and outside of federal buildings). Multimedia journalist Carlos Miller has documented many of these cases on his blog, Photography is Not a Crime.

 Are there any public places where you can be arrested for taking photos of police? What about the airport?

 Though officers may cite security or terrorist threats when  confronted by a camera, only a few general exceptions to the rule really  exist. For example, if you take images of specific areas at military  installations, those images could pose a threat to national security and  can legally be prohibited, according to Bert P. Krages II, an attorney  and author of Legal Handbook for Photographers.

 "Most attempts at restricting photography are done by lower-level  security and law enforcement officials acting way beyond their  authority. Note that neither the Patriot Act nor the Homeland Security  Act have any provisions that restrict photography," says Krages.

 Photography is indeed legal at the airport, including at screening locations, despite reports of travelers being questioned or harassed for taking photos or video.

 The Transportation Security Administration allows you to take pictures at checkpoints "as long as you're not interfering with the screening process  or slowing things down." They also ask not to take pictures or video of  the monitors, though the ACLU writes that "it is not clear whether they  have any legal basis for such a restriction when the monitors are  plainly viewable by the traveling public."

 Do rules for video differ from those for photography?

 In general, yes. The visual portion of a video is fully protected  under the First Amendment, and the same laws regarding photography  apply. Things get murkier when it comes to the audio; the issue is  currently being played out  in hotly contested cases around the country. In several states people  have been charged under wiretapping statutes for recording police  officers without their consent.

 Wiretapping or eavesdropping laws are designed to protect private  conversations from being secretly recorded. In the majority of states,  only one person must consent to the recording for it to be legal. In the  twelve states  where both parties must provide consent, some prosecutors have argued  that filming a police officer without permission violates his or her  rights, even if it occurs in a public place where there is no  "reasonable expectation of privacy."

 The number of such cases has jumped in recent years, but in August the ACLU scored a major victory,  in the First Circuit Court of Appeals, that will likely have  significant implications for such suits around the country. On October  1, 2007, attorney Simon Glik whipped out his cell phone  to record police officers making an arrest in Massachusetts. After an  officer asked whether his film included audio, he was arrested for  violating the state's wiretap statute. In a unanimous ruling, the court  ruled that Glik (backed by the ACLU) had a right to videotape the police carrying out their duties in public, and his arrest was therefore unconstitutional.

 While other states have brought similar cases under old wiretapping  laws, Illinois amended the law to make it explicitly illegal to record  police officers on duty without their consent. The constitutionality of  that law is currently being challenged in a federal court, in ACLU v. Alvarez.

 Can a police officer confiscate your equipment or demand to see photographs/video that you have taken?

 In certain circumstances. In general, unless the camera was used in a  crime (such as child pornography or "upskirting"), police officers need  a warrant to seize your equipment or to view pictures or video.

 However, courts may approve the seizure of a camera in some instances  where police have "reasonable, good-faith belief that it contains  evidence of a crime by someone other than the police themselves (it is  unsettled whether they still need a warrant to view them)," according to  the ACLU.

 Can police officers delete your photographs or video?

 No. Though news reports indicate a disturbing trend of cops illegally deleting evidence, police officers may never erase your photographs or video.

 What should you do if an officer stops you from taking pictures or shooting footage?

 Just because you are within your rights, it doesn't mean you won't be  questioned or harassed for shooting pictures or video of police  officers.

 In the event of a confrontation, stay calm and respectful. Don't give  the officer an opportunity to arrest you on unrelated charges such as  obstruction of justice.

 The ACLU, in its newly released guide "Know Your Rights: Photographers,"  recommends asking the officer if you are free to leave. "If the officer  says no, then you are being detained, something that under the law an  officer cannot do without reasonable suspicion that you have or are  about to commit a crime or are in the process of doing so. "

 If you are detained, ask what crime you are under suspicion of  committing. If the officer demands to view or confiscate your equipment,  ask what legal basis he or she has to do so, and get the officer's  badge number.

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[Ajamu]

Boston admits it: Cell phone photography is not a crime | Privacy Inc. - CNET News

 When  Massachusetts charged Simon Glik with using a cell phone to film an  arrest, prosecutors probably didn't realize they'd set a key First  Amendment precedent -- and cost taxpayers $170,000.
    by Declan McCullagh    March 27, 2012 10:56 PM PDT    
 
    The City of Boston tacitly acknowledged today that arresting a man for  recording a police officer in public may not exactly have been the  wisest -- or most constitutional -- choice.

  That acknowledgement comes in the form of a $170,000 payment to Simon Glik,  a Boston attorney who was prosecuted under criminal wiretap laws for  using his cell phone to record police arresting someone on the Boston  Common. They prosecuted the wrong fellow: Glik himself specializes in  criminal defense.

 

Simon Glik, a Boston-area criminal defense  attorney who was vindicated today after being illegally prosecuted for  recording cops during an arrest

 (Credit: Simon Glik)

  A spokeswoman for the Boston Police Department told CNET this afternoon  that the city has taken steps to ensure arrests-for-recording don't  happen again. That includes "conducting training sessions for all  department officers regarding the state wiretap statute," including  updating the curriculum at the police academy, and publishing multiple  training bulletins for officers, Elaine Driscoll said.

  Even though Boston has learned an expensive lesson in constitutional  law, other police departments have not: As cameras have become embedded  in more consumer electronic devices, more Americans are finding  themselves in legal jeopardy for digital snapshotting that's likely  protected by the First Amendment. Embedded eyeglasses cams like the ones  from ZionEyez (available for pre-order for $200) promise to accelerate developments.

  The list of camera-shy police departments is a lengthy one. Seattle police arrested a man who photographed an arrest. So did Minnesota police. And Miami police. And Baltimore police. And Richmond police. And Rochester police. And so on.

  In January, the National Press Photographers Association labeled the prosecutions  an "ongoing assault on the right to photograph [and] record in public."  This trend, accelerated by citizen-videography related to the Occupy  protests, is one reason the United States dropped so precipitously, from  20th place to 47th, in the most recent rankings of media freedom compiled by the Reporters Without Borders advocacy group. It's even led to a blog titled Photography is Not a Crime, written by Carlos Miller, who can claim to have been arrested three times for photographing cops.

  From law enforcement's perspective, the technological advance that gave  rise to low-cost video recording and even lower-cost Internet  distribution can cause some problems. It can prompt retaliation against  officers. It can reveal the identities of undercover cops or  confidential informants.

  But cameras can also highlight police wrongdoing -- as the death of Oscar Grant and the beating of Rodney King  demonstrated -- and provide a useful check on law enforcement's version  of events. More to the point, "wiretap" laws weren't intended to apply  to public confrontations, and if they did, they would likely run afoul  of the First Amendment's right to freedom of speech.

  "Updates in technology frequently present new circumstances for  officers," says Driscoll, the Boston police spokeswoman. "We strive to  keep our officers informed and updated to assist them in addressing new  issues."

  Adding extra impetus to Boston's training regimen was a ruling last August  in the Glik case from the U.S. Court of Appeals for the First Circuit.  Glik filed suit after being charged with violation of Massachusetts'  wiretap statute, disturbing the peace, and aiding in the escape of a  prisoner (the original fellow being arrested by police, who did not  actually escape).

  Glik said he made the recording because he believed excessive force had  been used during the arrest. Eventually, prosecutors dismissed the  charge of aiding in the escape. Only after the case went to court did  they abandon the other charges; Glik responded filed a civil rights  lawsuit alleging, among other things, First Amendment violations.

  The First Circuit sided with Glik, saying that "numerous circuit and  district courts" have reached similar conclusions and that the First  Amendment's newsgathering protections apply beyond traditional media  organizations:

The filming of government officials engaged in their duties in a public  place, including police officers performing their responsibilities, fits  comfortably within these (First Amendment) principles... This is  particularly true of law enforcement officials, who are granted  substantial discretion that may be misused to deprive individuals of  their liberties... Such peaceful recording of an arrest in a public  space that does not interfere with the police officers' performance of  their duties is not reasonably subject to limitation.


If the judges had ended there, that would have been a sweeping win for  Glik and his attorneys, including the American Civil Liberties Union of  Massachusetts, which helped him file the civil rights lawsuit. But the  First Circuit went further, saying the police should have known Glik's  arrest was illegal -- and therefore the cops could be held liable for  damages.

  "The law had been clear for years that openly recording a video is not a  crime," Glik said. "It's sad that it takes so much for police to learn  the laws they were supposed to know in the first place. I hope Boston  police officers will never again arrest someone for openly recording  their public actions."

  Boston probably won't. But the First Circuit's ruling has the force of  law only in Massachusetts, New Hampshire, Maine, Rhode Island, and  Puerto Rico.

  Which means the legal skirmishing is likely to continue. A likely future  point of contention: whether recording police in a public park like the  Boston Common is the same as recording them during traffic stops.

  That's led to arrests including that of Anthony Graber, a staff sergeant in the Maryland Air National Guard who was pulled over on his motorcycle  by a gun-waving fellow lacking a uniform who did not immediately  identify himself as police. (The case was thrown out, according to a report by the Baltimore Sun.) Earlier this month, a Temple University photojournalism student was arrested and charged with a felony for taking photos of a routine traffic stop.

  The Third Circuit, which includes Pennsylvania, New Jersey, and  Delaware, has said a traffic stop is an "inherently dangerous situation"  and the right to film it is not clearly established. Even the First  Circuit hinted that that they may view it differently: "A traffic stop  is worlds apart from an arrest on the Boston Common."