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Monday, January 24, 2011

Constitutional protection for recording police encounters

In the final part to my article on the important new role of video in civil rights enforcement, I considered what I called the "front-end" question of whether government can prohibit or limit surreptitious recording (audio and/or video) of public encounters with public officials, particularly law enforcement. I argued that there should be a First Amendment liberty to record such encounters (which a handful of lower federal courts have recognized), grounded in either a vision of the Free Press Clause as protecting the gathering of information for dissemination or in the Petition Clause as protecting a right to gather potential evidence for litigation.

Of course, the constitutional issue does not arise in most states, because wiretap laws require that the person recorded have a legitimate expectation of privacy in the conversation, which typically excludes law-enforcement officials in the course of performing their duties. So people are rarely arrested or prosecuted for surreptitious recording of police encounters, whether their own or those that they witness.

But several states have broader wiretap/eavesdropping laws, which prohibit all unconsented-to recordings involving any person in any circumstance (unless the person doing the recording is from law enforcement). One of these state is Massachusetts, whose law was upheld in 2001 in Comm v. Hyde, a decision I take apart in the article (and which Eugene Vol0kh has critiqued). Illinois has a similarly broad statute that requires the consent of all parties to a conversation for an electronic recording. The Illinois statute is in the news with stories that the Cook County State's Attorney is prosecuting two people for recording non-violent encounters with police. One of the two is an artists who sought to get arrested so he could challenge a permit law; the other is a woman who presented the recording as evidence in support of a complaint she made to Internal Affairs about the recorded officer's misconduct during the encounter (the same basic thing got the accused in trouble with Hyde). (H/T: Mark Kleiman, who argues that the problem here really is one of prosecutorial discretion).

The problem with wiretap laws as in Illinois and Massachusetts (Oregon is the third state to with such a restrictive law) is that they allow government to eliminate the check on misconduct that comes from the public being able to watch/listen to Big Brother and use the recording to document and help prove misconduct. There is no privacy-based rationale for such a broad prohibition. A surreptitious recording does not burden or disrupt police in doing their jobs; in fact, police are generally strong advocates for enhanced recording of encounters, as through dash-mounted cameras. If recording of such encounters is a good thing, the source of the video should not make a difference. Ironically, The Times story on the Illinois prosecutions quotes the head of the Fraternal Order of Police as arguing that allowing surreptitious record "can affect how an officer does his job on the street.” Exactly.

The ACLU of Illinois last year started a program of audio-recording police officers performing public duties in public places where officers are speaking at a volume audible to the unassisted ear. They had planned to record several planned encounters--suspicionless container searches on Chicago's lakefront, a political protest outside a government buidling, and an annual antiwar rally this spring--but did not do so out of fear of prosecution. The ACLU then filed suit on its own behalf, arguing that the state law violates the First Amendment. The district court dismissed the case without prejudice for lack of standing. The ACLU then sought to reopen the final judgment and amend the complaint. The district court denied the motion. Although the amended complaint sufficiently alleged an injury caused by fear of an imminent threat of prosecution, the court held that any such injury is not cognizable under the First Amendment, because no binding authority recognizes a right to audio record. Apparently Judge Conlon has not read Part V of my article (which I may need to revisit in fuller, stand-alone form).



Posted by Howard Wasserman on January 24, 2011 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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I was admitted to the MA in 1954. I made it a practice to review with care new MA statutes enacted that might impact upon my law practice. I recall when I received the West Publishing publication on new statutes in 1968 the "headline" for the MA wiretap statute (which apparently does not factor into construing or interpreting the statute); it included a reference to and stressing "organized crime." Upon reading and rereading the new statute, I was surprised with the provision requiring the consent of all parties to a conversation. I wondered how exactly this served the war on organized crime? Then it dawned on me that perhaps the MA legislature was protecting its own members (among others in the public sector). MA was out of step with most other states which seemed to follow the federal one-party consent. I don't know if Illinois' statute preceded or followed the MA statute. But I recall that Illinois, as well as MA, had had a history of public corruption problems. So apparently the MA legislature was not concerned with "unorganized crime."

Howard, it's freezing here in the Boston area and I dare not go out for newspapers. So I downloaded your article and plan to read it, especially Part V, to keep me busy today.

Posted by: Shag from Brookline | Jan 24, 2011 11:38:31 AM

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