When I was reading this I was wondering how is this any different than a TV station showing up with a film crew? They're recording audio the same as the guy with his cell phone. In the end, it's all about intimidation by the Boston Police.
There is typically distinctions made between mere citizens and Official Journalists, something I don't get. Look at discussions about bloggers and their rights to withhold information, or express political views, or failing to disclose financial incentives regarding matters they blog about. There seems to be a desire to neatly and authoritatively define what a "blogger" is[0], and to figure out what special rules apply. I rarely see anyone insist that US citizens have these basic rights, no matter whether you call what they do journalism, blogging, or whatever.
I'd like to think that would be true in this case as well, but I bet the same duality applies; some people get to be in a special class called "journalists" or "reporters", and so get more rights and privileges than Joe Smoe doing basically the same thing.
([0] The best is when the MSM talk about "bloggers" as if this was some well-defined group, with official leaders and common interests.)
This distinction is true when it is in regards to so-called 'shield laws,' which allow journalists to protect their sources. Without these laws, journalists can (and have) be held on obstruction of justice charges or worse. For the laws to work, though, they have to differentiate between journalists (as in those reporting news) and 'citizen' witnesses who simply don't want to cooperate in an investigation.
When it comes to recording news events, as in this article, any audio or video recorded in a public venue (and that is not sold commercially, if I remember my media law class accurately) is perfectly legal, regardless of who records it. Someone shooting video through your living room window from the middle of the street is, theoretically, legal, as it is in view from a public space. If that person steps on to your lawn and shoots the same video, however, that is invasion of privacy and probably trespassing as well.
While these videos should be completely legal, the laws governing this type of activity are usually state and local. It sounds like the law on the books in Boston is too broad and needs to be challenged.
Of course, IANL; I have a journalism degree and worked in newspapers for 5 years.
As a side note, someone should build a site for theses 'watching the watchers' videos. I'd be a fan.
Sorry for the delayed response here, but I feel it is important to reply to this question.
Previously, as shield laws were determined on a state-by-state basis, the answer varied. However, congress is currently working to adopt a federal shield law, which apparently will define a journalist as such:
(iii) obtains the information sought while working as a salaried employee of, or independent contractor for, an entity—
(I) that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and
(II) that—
(aa) publishes a newspaper, book, magazine, or other periodical;
(bb) operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;
(cc) operates a programming service; or
(dd) operates a news agency or wire service;
So by this law, amateur journalists do not count, which is truly unfortunate. Of course, that doesn't exclude amatuer journalists from observing and reporting, it merely excludes them from lawfully being able to not reveal their sources in a court of law.
I do not know why this was downmodded. The last line was somewhat snarky (I like Fox personally), but these are valid questions and form a genuine and important debate in many circles.
I was about to post much the same questions (minus the Fox sentiment).
How does one decide who is a journalist, and who is not? What makes a something a publication; what makes that publication a newspaper or a news source? Is it like jazz or pornography; you know it when you hear it or see it, but can't really define it?
I can understand wanting some distinction with regards to obstruction of justice, but I also worry that bestowing special protections on select groups is prone to political manipulation.
It's worse than intimidation. In the end it is about bending the law to impede on your rights and justice, not far from "totalitarianism"--where the state, usually under the control of a single political organization, faction, or class domination, recognizes no limits to its authority and strives to regulate every aspect of public and private life wherever feasible.
Stuff like this really annoys me–because I work in the photo industry and love to take pictures (especially in public). The privacy argument is a joke if you are in a public place. It only applies if you are in a place where you should expect privacy (i.e. in your home).
Anyone who keeps a camera with them often (or who is interested in this topic), should read the following:
>the privacy argument is a joke if you are in a public place
Surely not always a joke. If, for example, a couple is kissing in public then recording them against their will seems wrong to me. Whether it ought to be illegal is another question.
OTOH it seems to me that the actions of police ought to be regarded as public acts, and recording them in the public interest ought to be legal.
>Keep in mind that there is a big difference between taking a picture and publishing a picture
Yes, although the person being photographed doesn't know what the picture will be used for and so he may feel constrained nonetheless.
>> If, for example, a couple is kissing in public then recording them against their will seems wrong to me (although whether it ought to be illegal -- dunno)
(keep in mind, I'm mostly talking in the context of still photographs, not a/v)
I'm sure some parents feel the same about their children and celebrities feel the same about themselves. Unfortunately, once you step foot in a public place, you no longer have a * reasonable expectation of privacy*–regardless of who you are or what intimate act you may be participating in.
>> Yes, although the person being photographed doesn't know what the picture will be used for and so he may feel constrained nonetheless.
All the more reason for people to be educated and willing to educate others.
I've been accosted on more than one occasion simply for taking pictures in our downtown park–usually it's some hipster attempting to be impress his friends. If I'm in a good mood, I'll kindly explain my rights to him. If not, I'll just keep taking his picture while he talks to me.
Surely not always a joke. If, for example, a couple is kissing in public then recording them against their will seems wrong to me. Whether it ought to be illegal is another question.
I don't see why it seems wrong. They may not want you to record it, but if they are doing it in a public place they expect (or at least should expect) to be seen. Having it recorded is little different from having it seen except you now have a near-perfect copy to show others instead of having only the ability to discuss it.
It might to a degree be rude to record it, just as it would be rude to stare at them for prolonged periods as they did it, but that is very different than either morally or legally wrong.
Now if they are in somewhere that should be at least partially private (they're own home, a hotel room, etc), then recording is a very different story.
Photos are different than video, as there is no audio.
There are no statutes that I am aware of that prevent you from taking still pictures in open/public areas. There are certain grey areas around national monuments though.
I am a pro-hobbyist photog as well. I have heard stories of people being harassed in NYC for example for taking what would generally be considered "normal" photographs of buildings/bridges/monuments from either standard street-level, or in some cases slightly more artistic (but legal in the sense of not trespassing) vantage points.
From what I have seen, there is no true legal restriction from taking these photographs, but authorities either don't know this, or try to use intimidation tactics to discourage.
The "grey" area is that I don't know first-hand how all these cases have played out, and/or if there wasn't really some odd terrorist-area unconstitutional law that was being cited.
Ubiquitous surveillance is inevitable. The question is whether it is going to be whether or not the citizenry will have the same power that the authorities do. Technology is not the barrier; it is a matter of fighting for our legal rights.
The contrast is stark. One path is Orwellian, whereas the other path, while eroding some comforts that we're used to, promises us benefits that will more than compensate for it.
not only are more of us intimidating each other subtly and slowly through social grooming on social sites, aren't we also complicit in this surveillance as voters?
> Two-party consent means that all parties to a conversation must agree to be recorded on a telephone or other audio device.
There should be a distinction if a party is a public servant on duty. As soon as the policeman puts on their uniform, is on duty, and is in a public space, there should be no restriction about recording of what they do.
There should be a distinction if a party is a public servant on duty.
There should be a distinction if the party being recorded is in public. Courts have routinely ruled to the effect that one has "no expectation of privacy" when out in public. That the party being recorded is a public servant, engaged in (purportedly) public service just makes it all the more ... well, public.
Be careful what you wish for. If you declare anything in public to be fair game, but fail to allow for the possibilities of recording, mining and sharing data created by modern technology, you may not like the result.
For example, you probably wouldn't mind if I walked past you in the street and saw you go into a shop. You might object if I followed you around from the moment you left your home, filmed every shop you went into, what you bought, what you paid with (including any visible numbers on your cards, any PINs you typed in, what your signature looked like, etc.) and then put this on the web along with your name and address.
The idea that privacy is some sort of black-and-white concept is part of the problem.
You might object if I followed you around from the moment you left your home...
You're right; I might. I might also press charges for "stalking", which many jurisdictions have termed that kind of behavior, making it specifically illegal.
So where is the dividing line, then? When does incidental observation (but stored for all time in a database searchable by the public, say) become stalking?
In particular, is it possible that no individual act of recording personal data observed in public would constitute an unreasonable invasion of privacy (whatever we choose to call that in law) yet the combined total still has the effect of stalking? Because that is the real problem that, IMHO, the law hasn't caught up with yet. In a connected, database-driven world, you can't judge everything in isolation, because it is often the cumulative effect that is the dangerous thing.
> There should be a distinction if the party being recorded is in public.
Please read my full comment. It does mention that an officer would have to be in public. In other words, recording him in the mens room would not be appropriate.
The Boston cases clearly seem like police abuse of wiretapping laws which were originally intended to protect citizens talking on the phone (not hide evidence of physical violence against them)
I am curious, granted the source is Wikipedia, but the article says that those states require notification, not consent. Even if these laws did apply to this kind of in-person interaction, instead of just the phone conversations they were intended for, would it be valid to argue that clearly and openly beginning the recording is notification?
Sad. I'm surprised the first subject, a trained lawyer, didn't simply deny to answer the question concerning his camera. My standard response to any perceived intimidation by police these days is:
"I'm sorry Mr./Mrs/Sargent/Lt X, but I don't talk to police on material matters without counsel present."
Nah. It's actually no biggie. I've only had to use it a few times. It came as advice from my lawyer after having been involved peripherally a few years ago, as a witness, in one IAD case.
I grew up around law enforcement (best friend's father was FBI, and current friends in Secret Service etc.). Also, in Fed-land (e.g. Northern Virginia) where nearly everyone's family is in some form of government/legal service, I suspect the public/police interactions are atypical.
As a result, talking to cops in both personal and professional contexts isn't a novel experience. IMO, Virginia also has professional cop culture.
IME, extremely well, but see my previous comment on the general professionalism of Virginia police. I've had no personal experience with potentially litigious/confrontational law enforcement encounters outside of VA.
By immediately asserting your rights, the officer in question knows that they are not dealing with a person of "legal ignorance". As with communication in all social interactions, an assertive (but not aggressive) carriage, posture, positive eye contact, and tone helps a great deal.
Keep in mind that, in most contexts, when I see the triplet of a badge, an open-carry gun (the gun is key), and a police uniform, my default assumption is that of a PERSON who's sworn an oath and, consciously or unconsciously, respects SOME sort of legal authority given their avocation (though it may not necessarily be true).
FWIW, if you have any doubt, it's worth asking CLEARLY if the presumed officer in question has "sworn arrest powers in <insert municipality>". Police are allowed to lie, but they're not legally allowed to "assert police powers" such as arrest and/or detainment unless they have truly have them. In most U.S. state codes, there's a clear delineation between what constitutes a "lawful" and an "unlawful order" by law enforcement. Asserting police powers without being a sworn law enforcement officer is also usually a felony.
At worst, you may be severely inconvenienced for an "officer's safety" by being handcuffed and/or temporarily detained on-site, but you've preserved all of your rights under the law. Fighting temporary detainment is a "sticky wicket" and generally ill-advised unless you genuinely feel that your life or the lives of your family are at immediate risk (e.g. driving your pregnant wife to the hospital, etc.).
Massachusetts law prohibits SECRETLY recording oral or telephone conversations. It's pretty clear that whipping out a camera phone, pointing it at the officers, and pressing "record" is in no way a SECRET recording.
It seems to me like the Boston Police and The Powers That Be who they work for in Boston do not want any non-police witnesses with video evidence who could appear in court. I would assume they fear that non-police made video evidence might conflict with what the officers actually testify to in cases, and that this would give irrefutable evidence to a judge and jury as to what really happened.
Every corner store seems to have video surveillance to help deter crime I see nothing wrong with the public making videos of police officers. To me it actually seems like a very good idea.
I liked the quote at the end "Had I recorded an officer saving someone’s life, I almost guarantee you that they wouldn’t have come up to me and say, ‘Hey, you just recorded me saving that person’s life. You’re under arrest."
IANAL but isn't there something in the law about it having to be applied consistently?
The issue here isn't the photo/video part, but the audio part which the police are trying to say is illegal surveillance.
I have to wonder if the Boston PD is trying to set precedent that such cases will be thrown out so they can start using more audio recording without warrants or what. Possibly just trying to cover their own tracks so they don't have any evidence against them.
Precedent seems to be that the audio recording needs to be hidden. Holding up a cameraphone in plain site isn't hidden.
You make an excellent point, but I don't think that's what's going on here. This reminds me more of the ATM technician who overreacted to someone taking a photograph with their phone of the machine being refilled. The man was temporarily arrested and had his phone confiscated, and was treated very rudely, when in actual fact, technical schematics are available online from the ATM's manufacturer.
It's just people being power-hungry, that's all. I understand that police are concerned about their own privacy and safety, but the major reasoning behind much of the Bill of Rights was to prevent the police (and government in general) from feeling comfortable stepping outside their bounds. People in both situations claimed the cops were being overly violent - so what evidence could anyone bring against the police now?
It includes audio, and is meant to be worn by cops.
I am unfamiliar with Boston and MA law, so perhaps in it's different in those areas, but prsumably it's OK to run around recording audio during an arrest if Taser is selling these things.
Is a judge going to say that it's only OK when a cop does it?
Who watches the watchers? Checks and balances America, checks and balance.
"Boston police spokeswoman Elaine Driscoll rejected the notion that police are abusing the law to block citizen oversight, saying the department trains officers about the wiretap law. “If an individual is inappropriately interfering with an arrest that could cause harm to an officer or another individual, an officer’s primary responsibility is to ensure the safety of the situation,’’ she said."
Maybe my comment could have been written more clear. What I was portraying was the quote from the Boston police spokeswoman's ridiculous comment in regards to this situation--it was not relevant.
So my reply to her and the situation is "Who watches the watchers?" Meaning if the police are there to watch over us, who watches over the police i.e. "checks and balances"--a big ideal when our government was put together.
It is everyone's duty to perform and engage in checks and balance and I believe it is especially your right to record both audio and visual when in public domain.
Furthermore, they are bending this law... it was implemented as a "wiretap law".
Is there a market for a phone app that records video without audio? Cop-cam? Or maybe phone video recorders need a special "free and open society" button for this.
For lots of stupid arrests for photography, go to schneier.com/blog/ and search for photography ; there was a real rash of them for several years a while back.
For lots of Boston Police stupidity, go there and search on Boston Police.
Everyone seems to be siding against the police here, but I for one agree that recording people in public against their will should definitely be against the law.
It's just a really creepy thing to do and disrespectful of your fellows.
Wouldn't a better approach be to actually confront the police once the arrest has been made and let them know you saw the entire incident and considered it excessive and will be making a report after gathering their badge numbers? What are the chances that this video would only be used to file a complaint or in court, rather than showing up out of context on youtube?
Nay. I agree that recording private individuals in public places is dodgy (forbidden where I live, even -- and I am thankful for that), but police officers on duty do not fall in this category, especially when they are actively using force.
If you represent the public, expect to be watched when you act out your office in public.
If the video is put on YouTube and makes false accusations that don't hold up in court, you've got yourself a case of libel. It's simple as that.
It's all checks and balances. The state has to be checked on and balanced by the people. It's not that you shouldn't trust your police to regulate itself, it's just that it would be careless.
I agree that police should answer to the public, but are video recordings necessary for this? Corruption and excessive force seem like great arguments for police surveillance, but let's say you're a cop and you're stuffing down donuts in the coffee shop (excuse the stereotype, I mean it in jest only), and someone tapes it and throws it up on youtube. I don't think this is unlikely at all, and I think it's a total abuse of the officer's privacy.
Now you have a case of libel right? How does that work? Does it compensate for the damages that could be done to your reputation, the damages to the occupation itself? Does it sit in the courts for 2 years? My assumption is that suing after the fact would be an ineffective way, if it was the only way, to protect your privacy. I'll admit to not knowing much about these laws in the states though, and am open to being educated and corrected on the subject.
What also concerns me, is how would this affect police recruitment? Sure there's some bad eggs, but I have to believe that most people who become a police officer actually believe that what they're doing is a public and necessary service. Don't you think we'd lose a lot of great and ethical talent that would simply choose a less invasive career if they were made subject to constant surveillance?
There are other public offices too, which could just as easily support a case for surveillance. Like teaching. I can totally see someone arguing for teacher surveillance because it's the kids who are important after all... we'd lose a lot of quality teachers.
Anyways, I'm not sure I'm making my argument that solid. The fact is, I really don't like the idea of public surveillance though, regardless of who being recorded and who's doing the recording, and I don't think I'm alone. I don't like government employees recording us without consent, and I don't like us recording public employees without consent. It just leaves a really bad taste in my mouth either way.
> I agree that police should answer to the public, but are video recordings necessary for this?
So if something bad goes down, and it ends up as the officer's word against mine, who do you think people will believe? In most cases, police officers are believed over normal citizens when it comes down to a 'he said/she said' situation. Having a video recording of the encounter/incident goes a long way to proving that I'm telling the truth and the police officer is lying.
> Corruption and excessive force seem like great arguments for police surveillance, but let's say you're a cop and you're stuffing down donuts in the coffee shop (excuse the stereotype, I mean it in jest only), and someone tapes it and throws it up on youtube. I don't think this is unlikely at all, and I think it's a total abuse of the officer's privacy.
Please explain how a coffee shop is a private space where there is an expectation privacy? When you respond please give me some examples of legal precedent too. So far as I know, any court in the US would consider a coffee shop to be a public space (even if it is privately owned). Note that because it's a privately-owned space, the workers/management could tell me to leave if I don't stop recording though, but if I refused I guilty of trespass, not illegal wiretapping.
> Now you have a case of libel right?
How is a video of a cop eating a donut libel? Are you implying that he wasn't eating that donut?
> How does that work? Does it compensate for the damages that could be done to your reputation, the damages to the occupation itself? Does it sit in the courts for 2 years? My assumption is that suing after the fact would be an ineffective way, if it was the only way, to protect your privacy. I'll admit to not knowing much about these laws in the states though, and am open to being educated and corrected on the subject.
I'm still baffled as to what damage is done to a cop's reputation by the release of a video of him eating donuts? If he was eating them like a slob and it's an embarrassing video, that is not libel. In any case, it that situation he should have thought about not eating like a slob in the first place. It's not like the video camera was the only witness to the event. There are other people in the coffee shop to witness that the cop was eating like a slob. What happens when someone posts a rendition of what happened online? Maybe with the officer's name/badge number. Then what?
A libel suit? But he was there eating donuts like a slob. It's not a lie. It's the truth. In such a case, it would be he-said-she-said in court, but with a video there is no question.
> What also concerns me, is how would this affect police recruitment? Sure there's some bad eggs, but I have to believe that most people who become a police officer actually believe that what they're doing is a public and necessary service.
The way that I understand it, a lot of new recruits come in like this but get corrupted/disenfranchised after years of service. That's ignoring the people that are attracted to the job of police officer just for the gun and the badge (i.e. "Yah! I can legally shoot people!")
> Don't you think we'd lose a lot of great and ethical talent that would simply choose a less invasive career if they were made subject to constant surveillance?
As someone else already pointed out. We are already under constant surveillance. The issue here is whether or not citizens are allowed to put the police under surveillance. There are video cameras everywhere and the police use them at whim to get convictions, but if there is a case of police wrong-doing normal citizens don't have the access to their resources to try and prove their case.
> There are other public offices too, which could just as easily support a case for surveillance. Like teaching. I can totally see someone arguing for teacher surveillance because it's the kids who are important after all... we'd lose a lot of quality teachers.
Teachers don't have a legal right to shoot/beat the crap out of you. The police do have that right, as long as they justify it. But what happens when they do something wrongfully (maybe even by accident)? They can lie to cover up their crime. It can and does happen. We need some sort of bullet-proof evidence to pierce the conception that police officers are to be trusted always and without question.
> Anyways, I'm not sure I'm making my argument that solid. The fact is, I really don't like the idea of public surveillance though, regardless of who being recorded and who's doing the recording, and I don't think I'm alone. I don't like government employees recording us without consent, and I don't like us recording public employees without consent. It just leaves a really bad taste in my mouth either way.
That may be, but the police are a special case. On-duty police officers are given rights and responsibilities far above those of a normal citizen (even other public employees). Public surveillance of police officers (i.e. by private citizens in public spaces) helps all of us by keeping them honest. If a police officer knows that he can do something wrong, and then get away with it by lying in court because judges and juries are more likely to believe him than a random person off the street (or even more evil... more likely to believe him than an 'undesirable' like a drug dealer or a homeless person), then the rest of the public loses.
> It's just a really creepy thing to do and disrespectful of your fellows.
Are you trying to imply that laws like "Don't be a creep" and "You must show proper respect of your fellows" should be created? Should I be arrested or fined if I don't show proper respect? If someone thinks that I'm being creepy should I be jailed? Do I deserve to get raped in the ass in prison because you didn't like something that you did in a public space which I recorded (thereby embarrassing you)?
A personal anecdote:
A friend of mine got too drunk at a house party and started getting sad and complaining about all the things going wrong in his life. Another of my friends at the party stopped talking to him afterwards because she thought it was 'creepy.' Should he have been arrested or fined for getting drunk enough to complain about his life problems? (Note: He wasn't talking about embarrassing stuff like genital warts; He was talking about people dying in his life and frustrations with work and stuff.)
Just because something seem wrong/immoral/improper to you, does not mean that it needs to be illegal. When society starts moving in that direction, we are no different than the Catholic Church of yesteryear with The Inquisition or the Crusades or the Romans before them (executing Christians).
