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Recording police with your smartphone is a Constitutional right, says DoJ (digitaltrends.com)
302 points by ubasu on May 18, 2012 | hide | past | web | favorite | 63 comments



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.


In Oakland all police officers are equipped with lapel cameras. But having been involved in Occupy Oakland's legal and anti-repression work what we have found is that since police have discretion as to when they can turn the devices on and off and when to upload, the video always seems to be mysteriously missing whenever defense lawyers request it. The officer will say that they forgot to turn it on or that it malfunctioned. If there is an instance of a protestor throwing a bottle that video is always available and is splashed all over the press.


The cameras should be required to be on in order for the officer to do anything "in the line of duty". Furthermore, they should broadcast a wifi feed of what they're seeing in real time so that anyone can have a "listener" running nearby to capture it. You could have a listener in your car, at your apartment, or running on your iPhone. There should be a listener in the police car that instantly uploads the feed to a server managed by an agency that is totally independent from the police department.

Camera always on. Everyone gets an immediate copy.


that would be pretty handy for actual criminals


As well as a way to find out things that should be private into something public.

As far as I'm concerned, these records should only be unsealed, and made available for court proceedings. Accountability is important, but so is privacy.


Ha, good point. Okay, well amend my brainstorming to just being a live feed that goes to an independent agency that can make the video available at a later date.


Yes, all that's needed is for it to become available to subpoena and other lawful process.


Disagree on the immediate copy. Perhaps a few hours delay. A live feed would be too valuable for evading police.


There are a couple of legitimate reasons why police officers might not want to be recorded 8-12 hours a day.

First is purely psychological. Would you want to have someone looking over your shoulder all the time? Would you want your employer to record everything you do on your computer through some spyware? Have a camera mounted above your head?

Second is procedural. There are so many rules and regulations that it's almost impossible not to break some of them (just like with laws in western countries) so police officers (just like citizens) rely on low detection rate for minor violations and difficulty of proving anything.

There is also something to be said about how trustworthy police officers would be everyone they come in contact while on duty. People (and that includes criminals) find it much easier to trust a person they see standing in front ot them than some unknown tape reviewer.

And finally, basic privacy. If you work for many hours with little to do (patrolling the streets isn't exactly a consuming task), you probably have a lot of personal conversations with your partners.

Those problems will also be made worse by the officers themselves struggling with yet another piece of equipment (have you ever seen a cop running?).

All or almost all of the above could probably be resolved with selective recording, clear indicators of when the camera is running, light and easy to use devices and other technical solutions. Though we all know that, as with any other technological project, first users will get a lot of leakage and other bugs. And with the feedback loops what they are in the government, many may not be fixed for a really long time.


Would you want to have someone looking over your shoulder all the time?

People who work in retail seem to be doing just fine, not to mention officers of the court who's every word and deed is recorded and transcribed.


Don't forget airline pilots. And call center employees. And....

Well, I think it's clear enough that people can manage to do their jobs while being constantly watched. I won't say it's necessarily a good idea, but if it's a good idea for anybody, then people who are legally empowered to use force to enforce the law ought to be at the top of the list.


Airline pilots have strict protections on how the cockpit voice recorder information can be used; it's only a 30-minute loop, etc. Hardly the same as having every working day recorded permanently...


Yeah, but pilots don't have the ability to put you in jail.


Police work and retail work are not the same thing, not even close.

Nor is a highly dynamic and dangerous street environment, and a highly controlled and procedural court environment.


Just like anybody else who finds themselves working in distasteful environments, they can get another job.


I run the OpenWatch project - http://openwatch.net

Many officers use our software to record themselves on duty. They use this evidence in court for exactly this reason.


Do you have any experience with people using Looxcies? They are basically like tiny Bluetooth ear pieces but with an HD video camera. It seems like they'd be perfect for recording the cops, but I have no idea if they're actually any good or not in that sort of environment.


Because people with that sort of power don't want an audit trail of their actions.


That's pretty darn cynical, I think people in general want their privacy respected, regardless of power level.


Privacy comes from private. What you do in your function as a public servant is not private.


Civilians may be uncomfortable with police officers recording everything all the time.

See, for example, discussion about CCTV in England. There are many valid concerns about the amount of stuff that's recorded.


I think it's just technology adoption lag. Cruisers have had these cameras on their dashboards (dash cams) for a while now. At first with resistance but now it's saved more cops than burnt.


This is in part because cops (indeed, nearly everyone) behave better when their actions are recorded.


The Denver police have been trialing a program to do just this: 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.


> * 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.


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.


It's becoming more common. The local cops in my area wear microphones that activate whenever they're away from their vehicle (everything that happens near the vehicle is captured by the dash cam).

Every cop I've talked to about it is very positive. It often make their life much easier in court...


Some police are, I've seen them with helmet cams before.


They should be, but all those video streams should be either made public or at least sent to a completely different Government agency, so the police has no power over the data.


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.


Considering this:

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.


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.


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.


That's why you use something like Justin.tv or QIK or something that live uploads. Cop beats you up and smashes your phone? The resulting payout you'll get will make the beatdown worth it.

I'd totally take a beatdown if it would make me a multi millionaire :)


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 ;)


"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.


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.


At the same time, shoving a camera into someones face could impact their ability to perform their job.

Agreed - you should maintain your distance, but I've seen many videos on YouTube where the person videoing wasn't interfering at all and certainly wasn't "in their face", but the cops did not like being filmed and arrested the person. That is just not right.


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).


All tyranny needs to gain a foothold is for people of good conscience to remain silent.


You were "interfering" with her job. You should never get in a cops face when they are arresting someone. Unfortunately cops can ask you to step back, and there is no clearly defined boundary on what distance would be considered "interference." Typically the distance is in direct correlation to the sort of recording device you have pointed at them.


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.


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."


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/stat...


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

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.


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.


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-citizen...



Occupy Cal. Thank god someone recorded this and I hope the police get fired.

http://www.youtube.com/watch?v=B_f06VQOkI4


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.


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.


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)

(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)


I think http://en.wikipedia.org/wiki/Police_misconduct#Video_and_aud... is the closest you're going to get.


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


"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.


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-...


That's very alarming, but also pre-exists this DOJ precedent. Hopefully this gets tested and validated in court soon.


I assigned the bit.ly link 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.


How does this apply Illinois' law?


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.


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_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.


interesting thanks. so freedom of speech and lots of other stuff has been incorporated, but not everything in the constitution applies to states automatically


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.




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