14 ms·

Recording police with your smartphone is a Constitutional right, says DoJ

302 points by ubasu 14y ago

philip1209 14y ago
How does this apply Illinois' law?
- ludflu 14y ago
  its my understanding that due to the supremacy clause, federal (constitutional) law trumps state laws. in some cases, state laws can grant addiitional rights, but they can't abridge the rights granted by the constitution.
  - ComputerGuru 14y ago
    Not exactly - you're right about most of what you said, except the constitutional rights/bill of rights. The Bill of Rights defends individuals against the federal government, and did not originally apply to State governments. One by one, the amendments have been/are being slowly incorporated to protect individual rights against State governments as well, as the result of Supreme Court rulings: http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Ri... To date, the first, second, fourth, partially fifth, (by and large) sixth, and partially eight amendments have been incorporated, i.e. apply equally to both State and Federal governments. The 2nd (the right to bear arms) was the most recent one, incorporated in 2010 here in Chicago.
    - ludflu 14y ago
      interesting thanks. so freedom of speech and lots of other stuff has been incorporated, but not everything in the constitution applies to states automatically
cgs1019 14y ago
link to actual letter published: http://www.pixiq.com/sites/default/files/united_states_letter_re_photography_5_14_2012_0.pdf http://www.pixiq.com/sites/default/files/united_states_lette...
jamesBB 14y ago
Occupy Cal. Thank god someone recorded this and I hope the police get fired. http://www.youtube.com/watch?v=B_f06VQOkI4 http://www.youtube.com/watch?v=B_f06VQOkI4
ck2 14y ago
But I wonder what they think of police downloading and cloning your phone's content at their whim.
- rpedroso 14y ago
  "officers must not search or seize a camera or recording device without a warrant." The seizure clause of the Fourth Amendment would seem cover any case in which they wanted a copy of your data.
  - cookiecaper 14y ago
    You should inform Michigan State Police. >The CelleBrite UFED is a handheld device that Michigan officers have been using since August 2008 to copy information from mobile phones belonging to motorists stopped for minor traffic violations. [...] [I]t can copy everything on your smartphone in a matter of minutes. http://thenextweb.com/us/2011/04/20/us-police-can-copy-your-iphones-contents-in-under-two-minutes/ http://thenextweb.com/us/2011/04/20/us-police-can-copy-your-...
    - rpedroso 14y ago
      That's very alarming, but also pre-exists this DOJ precedent. Hopefully this gets tested and validated in court soon.
Cieplak 14y ago
Here is a case from my state of Maryland where a motorcyclist was charged with recording a police man without the officer's permission; it was very upsetting to me when in happened two years ago: http://weblogs.baltimoresun.com/news/crime/blog/2010/05/state_police_charge_motorcycli.html http://weblogs.baltimoresun.com/news/crime/blog/2010/05/stat...
- 13rules 14y ago
  I remember that when it happened and totally agree. It's ok for the cop to get out of his car with his gun drawn and no identification that he is police and go up to the guy on the bike, but it's not ok that the rider had a helmet cam that recorded the entire thing? The bottom line with these kinds of cases is that if not for the video, the victims of police brutality and abuse would have nothing to show ... and there have been many cases where police have lied to cover up their actions. One case that sticks in my mind is when a Maryland basketball fan was attacked and beaten by three police officers completely unprovoked: http://www.youtube.com/watch?v=OYckCapjdnY http://www.youtube.com/watch?v=OYckCapjdnY The reporting officer falsified the report and stated that the student had struck the police horse. This video turned up a few days later and shows that none of that happened. If not for the video, those officers would have gotten away with beating up a student and lying about it ... and the victim would have been the one having to pay for it with jail time, fines, and lawyer's fees. That's exactly the kind of abuse we need to protect against.
  - Cieplak 14y ago
    I went to Maryland and was a student when this happened. The video you mention was filmed from South Campus Commons Building 3, and I lived in 4. I was at a friends house when this happened, and rode my bike home shortly after this happened, not knowing all of this had happened (not a big basketball fan). As I was riding my bike down Baltimore Avenue, two cops in riot suits were standing on the sidewalk beside the street, and when I was just square with them, they suddenly jumped at me screaming stop. I almost lay down by bicycle as one of the cops tries to tackle me. He managed to kick my back tire, and I skid to a halt and dismount. They come up to me and point their 50mm canister guns in my face and start yelling in my face. I smile at them and sort of laugh, and ask if there's a problem officer. They say I was entering a restricted area, and tell me I have to turn around. I point to the my building and they don't really care. They say I have to turn around. These cops don't get to go to riots very often, so when they do get the chance, they like to have as much fun as they can with it.
evolve2k 14y ago
I'm wondering is there a Wikipedia article on this issue, I was interested to get more background on this, especially the status in other countries.
- gwern 14y ago
  I think http://en.wikipedia.org/wiki/Police_misconduct#Video_and_audio_recording http://en.wikipedia.org/wiki/Police_misconduct#Video_and_aud... is the closest you're going to get.
- TDL 14y ago
  Radley Balko has written extensively on this topic. It is also a frequent topic @ Reason.com. Carlos Miller maintains a blog called "Photography is not a Crime" that deals with this issue. Those sources are good places to start learning about the ongoing issues of photography in public spaces & of police actions.
- DanBC 14y ago
  England has a bunch of separate independent police authorities. The London Metropolitan Police have this advice about photography in public: (http://www.met.police.uk/about/photography.htm http://www.met.police.uk/about/photography.htm) (There are extra protections for journalists, which don't appear to be listed on that page.) EDIT: But see also this page, where police will extract your phone data if they think the phone has been used in crime. (http://www.bbc.co.uk/news/technology-18102793 http://www.bbc.co.uk/news/technology-18102793)
ghayes 14y ago
The quality of this memo truly reflects the appropriate attitude of DoJ in regards to First (Speech), Fourth (Search), and Fourteenth (Due Process) Amendment rights. > E.g. "Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices."
wpietri 14y ago
Just copied this to my smartphone so I have it on hand. For years I've been in the habit of just hanging around for a bit if I come across cops when they're dealing with citizens. I encourage everybody to try it from time to time. Worst case, you learn something. Best case, you subtly remind the police who they work for: their fellow citizens.
ori_b 14y ago
Why aren't the police equipped with recording devices that are active whenever they are interacting with the public? It seems that anyone with that sort of power should have an audit trail for their actions.
- Mvandenbergh 14y ago
  Some police are, I've seen them with helmet cams before.
- matwood 14y ago
  The Denver police have been trialing a program to do just this: http://blogs.westword.com/latestword/2011/10/denver_police_wearing_cameras.php http://blogs.westword.com/latestword/2011/10/denver_police_w... It's taken a lot of brutality cases and lawsuits to get them to this point though.
  - ori_b 14y ago
    > * Officers will be able to turn the cameras on or off at their discretion.* That part seems to render much of the experiment useless, sadly.
    - matwood 14y ago
      Yes and no. If the camera is on and then shuts off for a few moments it does make the officer look like they are trying to hide something. Also, just having this step in the right direction will hopefully set up a time in the future when all dealings with the police have to be recorded by law. A similar thing happened in my home town. A state law said that all police cars must have cameras for DUI stops. One of the counties in the state that wrote the most DUIs kept saying they couldn't afford to put cameras in all of the cruisers. Finally, a judge started throwing out all DUIs where the camera wasn't installed. Cameras were all installed and working in short order. Technology has made it so easy to record all interactions that if the police are not doing it then the default reason is they are trying to hide something.
- Mizza 14y ago
newbusox 14y ago
Not to burst anyone's bubbles, but just because the DoJ has issued a letter stating that they believe this is constitutional does not make it so. There are opinions, I believe, from the First and Seventh Circuits that state explicitly that this is the case, but, probably until there is a definitive decision from the US Supreme Court or the like, or of an appellate court in a given state, local police could still try to arrest you for recording them, and the police may be able to make a colorable argument that that is valid. It's not inconceivable, depending on the jurisdiction, that a court could decide in police's favor were someone to sue in a situation like that.
- felipemnoa 14y ago
  Considering this: http://www.nwprogressive.org/weblog/2012/04/supreme-court-says-police-can-strip-search-anyone-they-arrest-without-probable-cause.html http://www.nwprogressive.org/weblog/2012/04/supreme-court-sa... I don't think is a wise idea to take this to the supreme court at this moment. They could easily say that it is illegal to record police.
  - cynicalkane 14y ago
    I find it very strange that you're citing (a highly erroneous summary of) a Court ruling restricting the right privacy for jail inmates in specific situations, in order to argue that the Court will extend privacy of persons in public places. Actually, the lack of prisoners' rights to privacy, and the right to record things in public areas, are both well established. By the way, the word you're looking for is "unconstitutional", not "illegal". Even should the Court restrict the right to record--which they won't, it's a well-established right--jurisdictions may establish that right through law anyway.
- loverobots 14y ago
  Two appeal courts have said yes and DOJ said yes too. Personally I'd be more afraid of getting my @ss kicked for "resisting police" and having my video erased, than being arrested for taping cops.
  - 14y ago
f45s8g2 14y ago
What about the rights of the person the police may be addressing? Is it OK to film someone who is being questioned, arrested, etc. by police? Many states have laws against unauthorized audio recordings of other citizens. Does this affect the right to record them while in discussions with police (or anyone for that matter)?
sodafountan 14y ago
I've actually been arrested once for recording a police officer, I went up to her with my cellphone in hand when she was questioning my intoxicated friend on my college campus. She snatched my phone away from me and said I was prohibiting her from doing her job, and so I was taken in with my friend. Looks like i'll be fighting this one. Never thought HN would be a good source for legal advice ;)
- GFischer 14y ago
  Don't substitute advice on HN for real legal advice. Also, going looking for legal trouble on this will get you people to cheer on the sidelines, but not to cover legal expenses (unless you get the EFF or something to sponsor your case). In my experience, it's better to pick your fights, this one doesn't seem worth it (but I don't know what your situation is, so ymmv).
  - guelo 14y ago
    All tyranny needs to gain a foothold is for people of good conscience to remain silent.
- 13rules 14y ago
  "said I was prohibiting her from doing her job" Translation: You've done something that I don't like, but isn't illegal, so here's a trumped up charge so you have to spend the night in jail.
  - jasonlotito 14y ago
    At the same time, shoving a camera into someones face could impact their ability to perform their job. In, fact, unless your job involves working with a camera, I imagine a camera in the face wouldn't help matters. Simply put, while I agree we should be able to records officers, I also believe that playing a game of "I'm not touching you" with a camera is out of place. Indeed, if your dealing with drunk people as a cop, having someone else walk up to you is going to be threatening. So, why does a person with a camera automatically get a pass. Yes, you have the right to record. But that doesn't give you the right to ignore the officer.
protomyth 14y ago
The Fullerton case would have been buried without the recordings - here is reason.tv's latest video http://reason.com/blog/2012/05/16/outraged-fullerton-citizens-react-to-kel http://reason.com/blog/2012/05/16/outraged-fullerton-citizen...
ktizo 14y ago
Has anyone done a decently researched bust card website/app for smartphones that covers different laws for different worldwide jurisdictions yet? I am sure that this could be funded by contextually advertising lawyers selected for their qualifications in each area, so that you can get their services with a button. Also, have an off-phone media recording service to lots of different territories so as to preserve evidence. Very difficult to destroy evidence that is being recorded globally. And if you want to make it nice and fluffy, you make sure that it is independent of the lawyers/sponsors and can kick them off and replace them if they are crap.
dotBen 14y ago
I assigned the bit.ly link http://bit.ly/filmpolice http://bit.ly/filmpolice to this pdf, so that you can call it up on your phone if you needed it at the police station, etc.

302 points by ubasu 14y ago

philip1209 14y ago

How does this apply Illinois' law?

ludflu 14y ago
its my understanding that due to the supremacy clause, federal (constitutional) law trumps state laws. in some cases, state laws can grant addiitional rights, but they can't abridge the rights granted by the constitution.
- ComputerGuru 14y ago
  Not exactly - you're right about most of what you said, except the constitutional rights/bill of rights. The Bill of Rights defends individuals against the federal government, and did not originally apply to State governments. One by one, the amendments have been/are being slowly incorporated to protect individual rights against State governments as well, as the result of Supreme Court rulings: http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Ri... To date, the first, second, fourth, partially fifth, (by and large) sixth, and partially eight amendments have been incorporated, i.e. apply equally to both State and Federal governments. The 2nd (the right to bear arms) was the most recent one, incorporated in 2010 here in Chicago.
  - ludflu 14y ago
    interesting thanks. so freedom of speech and lots of other stuff has been incorporated, but not everything in the constitution applies to states automatically

cgs1019 14y ago

link to actual letter published: http://www.pixiq.com/sites/default/files/united_states_letter_re_photography_5_14_2012_0.pdf http://www.pixiq.com/sites/default/files/united_states_lette...

jamesBB 14y ago

Occupy Cal. Thank god someone recorded this and I hope the police get fired. http://www.youtube.com/watch?v=B_f06VQOkI4 http://www.youtube.com/watch?v=B_f06VQOkI4

ck2 14y ago

But I wonder what they think of police downloading and cloning your phone's content at their whim.

rpedroso 14y ago
"officers must not search or seize a camera or recording device without a warrant." The seizure clause of the Fourth Amendment would seem cover any case in which they wanted a copy of your data.
- cookiecaper 14y ago
  You should inform Michigan State Police. >The CelleBrite UFED is a handheld device that Michigan officers have been using since August 2008 to copy information from mobile phones belonging to motorists stopped for minor traffic violations. [...] [I]t can copy everything on your smartphone in a matter of minutes. http://thenextweb.com/us/2011/04/20/us-police-can-copy-your-iphones-contents-in-under-two-minutes/ http://thenextweb.com/us/2011/04/20/us-police-can-copy-your-...
  - rpedroso 14y ago
    That's very alarming, but also pre-exists this DOJ precedent. Hopefully this gets tested and validated in court soon.

Cieplak 14y ago

Here is a case from my state of Maryland where a motorcyclist was charged with recording a police man without the officer's permission; it was very upsetting to me when in happened two years ago: http://weblogs.baltimoresun.com/news/crime/blog/2010/05/state_police_charge_motorcycli.html http://weblogs.baltimoresun.com/news/crime/blog/2010/05/stat...

13rules 14y ago
I remember that when it happened and totally agree. It's ok for the cop to get out of his car with his gun drawn and no identification that he is police and go up to the guy on the bike, but it's not ok that the rider had a helmet cam that recorded the entire thing? The bottom line with these kinds of cases is that if not for the video, the victims of police brutality and abuse would have nothing to show ... and there have been many cases where police have lied to cover up their actions. One case that sticks in my mind is when a Maryland basketball fan was attacked and beaten by three police officers completely unprovoked: http://www.youtube.com/watch?v=OYckCapjdnY http://www.youtube.com/watch?v=OYckCapjdnY The reporting officer falsified the report and stated that the student had struck the police horse. This video turned up a few days later and shows that none of that happened. If not for the video, those officers would have gotten away with beating up a student and lying about it ... and the victim would have been the one having to pay for it with jail time, fines, and lawyer's fees. That's exactly the kind of abuse we need to protect against.
- Cieplak 14y ago
  I went to Maryland and was a student when this happened. The video you mention was filmed from South Campus Commons Building 3, and I lived in 4. I was at a friends house when this happened, and rode my bike home shortly after this happened, not knowing all of this had happened (not a big basketball fan). As I was riding my bike down Baltimore Avenue, two cops in riot suits were standing on the sidewalk beside the street, and when I was just square with them, they suddenly jumped at me screaming stop. I almost lay down by bicycle as one of the cops tries to tackle me. He managed to kick my back tire, and I skid to a halt and dismount. They come up to me and point their 50mm canister guns in my face and start yelling in my face. I smile at them and sort of laugh, and ask if there's a problem officer. They say I was entering a restricted area, and tell me I have to turn around. I point to the my building and they don't really care. They say I have to turn around. These cops don't get to go to riots very often, so when they do get the chance, they like to have as much fun as they can with it.

evolve2k 14y ago

I'm wondering is there a Wikipedia article on this issue, I was interested to get more background on this, especially the status in other countries.

gwern 14y ago
I think http://en.wikipedia.org/wiki/Police_misconduct#Video_and_audio_recording http://en.wikipedia.org/wiki/Police_misconduct#Video_and_aud... is the closest you're going to get.
TDL 14y ago
Radley Balko has written extensively on this topic. It is also a frequent topic @ Reason.com. Carlos Miller maintains a blog called "Photography is not a Crime" that deals with this issue. Those sources are good places to start learning about the ongoing issues of photography in public spaces & of police actions.
DanBC 14y ago
England has a bunch of separate independent police authorities. The London Metropolitan Police have this advice about photography in public: (http://www.met.police.uk/about/photography.htm http://www.met.police.uk/about/photography.htm) (There are extra protections for journalists, which don't appear to be listed on that page.) EDIT: But see also this page, where police will extract your phone data if they think the phone has been used in crime. (http://www.bbc.co.uk/news/technology-18102793 http://www.bbc.co.uk/news/technology-18102793)

ghayes 14y ago

The quality of this memo truly reflects the appropriate attitude of DoJ in regards to First (Speech), Fourth (Search), and Fourteenth (Due Process) Amendment rights. > E.g. "Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices."

wpietri 14y ago

Just copied this to my smartphone so I have it on hand. For years I've been in the habit of just hanging around for a bit if I come across cops when they're dealing with citizens. I encourage everybody to try it from time to time. Worst case, you learn something. Best case, you subtly remind the police who they work for: their fellow citizens.

ori_b 14y ago

Why aren't the police equipped with recording devices that are active whenever they are interacting with the public? It seems that anyone with that sort of power should have an audit trail for their actions.

Mvandenbergh 14y ago
Some police are, I've seen them with helmet cams before.
matwood 14y ago
The Denver police have been trialing a program to do just this: http://blogs.westword.com/latestword/2011/10/denver_police_wearing_cameras.php http://blogs.westword.com/latestword/2011/10/denver_police_w... It's taken a lot of brutality cases and lawsuits to get them to this point though.
- ori_b 14y ago
  > * Officers will be able to turn the cameras on or off at their discretion.* That part seems to render much of the experiment useless, sadly.
  - matwood 14y ago
    Yes and no. If the camera is on and then shuts off for a few moments it does make the officer look like they are trying to hide something. Also, just having this step in the right direction will hopefully set up a time in the future when all dealings with the police have to be recorded by law. A similar thing happened in my home town. A state law said that all police cars must have cameras for DUI stops. One of the counties in the state that wrote the most DUIs kept saying they couldn't afford to put cameras in all of the cruisers. Finally, a judge started throwing out all DUIs where the camera wasn't installed. Cameras were all installed and working in short order. Technology has made it so easy to record all interactions that if the police are not doing it then the default reason is they are trying to hide something.
Mizza 14y ago

newbusox 14y ago

Not to burst anyone's bubbles, but just because the DoJ has issued a letter stating that they believe this is constitutional does not make it so. There are opinions, I believe, from the First and Seventh Circuits that state explicitly that this is the case, but, probably until there is a definitive decision from the US Supreme Court or the like, or of an appellate court in a given state, local police could still try to arrest you for recording them, and the police may be able to make a colorable argument that that is valid. It's not inconceivable, depending on the jurisdiction, that a court could decide in police's favor were someone to sue in a situation like that.

felipemnoa 14y ago
Considering this: http://www.nwprogressive.org/weblog/2012/04/supreme-court-says-police-can-strip-search-anyone-they-arrest-without-probable-cause.html http://www.nwprogressive.org/weblog/2012/04/supreme-court-sa... I don't think is a wise idea to take this to the supreme court at this moment. They could easily say that it is illegal to record police.
- cynicalkane 14y ago
  I find it very strange that you're citing (a highly erroneous summary of) a Court ruling restricting the right privacy for jail inmates in specific situations, in order to argue that the Court will extend privacy of persons in public places. Actually, the lack of prisoners' rights to privacy, and the right to record things in public areas, are both well established. By the way, the word you're looking for is "unconstitutional", not "illegal". Even should the Court restrict the right to record--which they won't, it's a well-established right--jurisdictions may establish that right through law anyway.
loverobots 14y ago
Two appeal courts have said yes and DOJ said yes too. Personally I'd be more afraid of getting my @ss kicked for "resisting police" and having my video erased, than being arrested for taping cops.
- 14y ago

f45s8g2 14y ago

What about the rights of the person the police may be addressing? Is it OK to film someone who is being questioned, arrested, etc. by police? Many states have laws against unauthorized audio recordings of other citizens. Does this affect the right to record them while in discussions with police (or anyone for that matter)?

sodafountan 14y ago

I've actually been arrested once for recording a police officer, I went up to her with my cellphone in hand when she was questioning my intoxicated friend on my college campus. She snatched my phone away from me and said I was prohibiting her from doing her job, and so I was taken in with my friend. Looks like i'll be fighting this one. Never thought HN would be a good source for legal advice ;)

GFischer 14y ago
Don't substitute advice on HN for real legal advice. Also, going looking for legal trouble on this will get you people to cheer on the sidelines, but not to cover legal expenses (unless you get the EFF or something to sponsor your case). In my experience, it's better to pick your fights, this one doesn't seem worth it (but I don't know what your situation is, so ymmv).
- guelo 14y ago
  All tyranny needs to gain a foothold is for people of good conscience to remain silent.
13rules 14y ago
"said I was prohibiting her from doing her job" Translation: You've done something that I don't like, but isn't illegal, so here's a trumped up charge so you have to spend the night in jail.
- jasonlotito 14y ago
  At the same time, shoving a camera into someones face could impact their ability to perform their job. In, fact, unless your job involves working with a camera, I imagine a camera in the face wouldn't help matters. Simply put, while I agree we should be able to records officers, I also believe that playing a game of "I'm not touching you" with a camera is out of place. Indeed, if your dealing with drunk people as a cop, having someone else walk up to you is going to be threatening. So, why does a person with a camera automatically get a pass. Yes, you have the right to record. But that doesn't give you the right to ignore the officer.

protomyth 14y ago

The Fullerton case would have been buried without the recordings - here is reason.tv's latest video http://reason.com/blog/2012/05/16/outraged-fullerton-citizens-react-to-kel http://reason.com/blog/2012/05/16/outraged-fullerton-citizen...

ktizo 14y ago

Has anyone done a decently researched bust card website/app for smartphones that covers different laws for different worldwide jurisdictions yet? I am sure that this could be funded by contextually advertising lawyers selected for their qualifications in each area, so that you can get their services with a button. Also, have an off-phone media recording service to lots of different territories so as to preserve evidence. Very difficult to destroy evidence that is being recorded globally. And if you want to make it nice and fluffy, you make sure that it is independent of the lawyers/sponsors and can kick them off and replace them if they are crap.

dotBen 14y ago

I assigned the bit.ly link http://bit.ly/filmpolice http://bit.ly/filmpolice to this pdf, so that you can call it up on your phone if you needed it at the police station, etc.