Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Radley Balko's weekly Fox News column focuses on a disturbing trend lately - people getting arrested for videotaping the police doing their job. It was prompted by this incident:
Last month, Brian Kelly of Carlisle, Pa., was riding with a friend when the car he was in was pulled over by a local police officer. Kelly, an amateur videographer, had his video camera with him and decided to record the traffic stop.The officer who pulled over the vehicle saw the camera and demanded Kelly hand it over. Kelly obliged. Soon after, six more police officers pulled up. They arrested Kelly on charges of violating an outdated Pennsylvania wiretapping law that forbids audio recordings of any second party without their permission. In this case, that party was the police officer.
Kelly was charged with a felony, spent 26 hours in jail, and faces up to 10 years in prison. All for merely recording a police officer, a public servant, while he was on the job.
But as he points out, this has been happening all around the country:
There's been a rash of arrests of late for videotaping police, and it's a disturbing development. Last year, Massachusetts Attorney General Tom Reilly threatened Internet activist Mary T. Jean with arrest and felony prosecution for posting a video to her website of state police swarming a home and arresting a man without a warrant.Michael Gannon of New Hampshire was also arrested on felony wiretapping charges last year after recording a police officer who was being verbally abusive on his doorstep. Photojournalist Carlos Miller was arrested in February of this year after taking pictures of on-duty police officers in Miami.
And Philadelphia student Neftaly Cruz was arrested last year after he took pictures of a drug bust with his cell phone.
And his analysis is spot on:
As noted, police are public servants, paid with taxpayer dollars. Not only that, but they're given extraordinary power and authority we don't give to other public servants: They're armed; they can make arrests; they're allowed to break the very laws they're paid to enforce; they can use lethal force for reasons other than self-defense; and, of course, the police are permitted to videotape us without our consent.It's critical that we retain the right to record, videotape or photograph the police while they're on duty. Not only for symbolic reasons (when agents of the state can confiscate evidence of their own wrongdoing, you're treading on seriously perilous ground), but as an important check on police excesses. In the age of YouTube, video of police misconduct captured by private citizens can have an enormous impact.
Consider Eugene Siler. In 2005, the Campbell County, Tenn., man was confronted by five sheriff's deputies who (they say) suspected him of drug activity. Siler's wife surreptitiously switched on a tape recorder when the police officers came inside. Over the next hour, Siler was mercilessly beaten and tortured by the officers, who were demanding he confess to drug activity. Siler was poor, illiterate and had a nonviolent criminal record. Without that recording, it's unlikely anyone would have believed his account of the torture over the word of five sheriff's deputies.
Earlier this year, Iraq war veteran Elio Carrion was shot three times at near-point-blank range by San Bernardino, Calif., deputy Ivory Webb. Carrion was lying on the ground and was unarmed. Video of the arrest and shooting, however, was captured by bystander Jose Louis Valdez. Webb since has been fired from the police department and is on trial on charges of attempted voluntary manslaughter and assault with a firearm. The video is the key piece of evidence in his trial.
While it's possible that police and prosecutors would have believed Carrion's version of events over Webb's even without the video, it seems unlikely. Webb is the first officer to be indicted in the history of the San Bernardino Police Department.
Time and time again the only thing preventing a coverup of police brutality or malfeasance has been someone there with a video camera to record it. I think we need a Federal law on this, or a Federal court ruling overturning all state laws under which someone could be prosecuted for it. The right of citizens to document the misbehavior of the police must be firmly established and uniform nationwide.
Comments
I wonder if any of the police in Pennsylvania use video cameras in their patrol cars? If so, wouldn't they be violating that same law?
Posted by: Mark P | June 21, 2007 9:31 AM
I've long believed that anyone afraid of being recorded doing their job isn't doing it right. In fact, I've argued that privacy is neither a basic Constitutional right, nor particularly useful to society. Sadly, that only really works if you can trust the government to stay out of individuals' lives.
In these cases, though, we have effectively a peaceful protest met with a violent reaction - aiming a camera hardly equates to aiming a gun. Ethically, this seems the equivalent of those Hareidim nutcases we've been arguing with Ruvy about - and the fact that the offenders are representatives of the State only makes it worse.
Posted by: BobApril | June 21, 2007 10:42 AM
@Mark P
In many states - police cars are exempt. The same goes for taxi's, buses, and other service vehicles that take passengers.
Posted by: yoshi | June 21, 2007 10:55 AM
Correct me if I'm wrong, but you can photograph/videotape ANYTHING that occurs on a public setting such as a street because there's no expectation of privacy when driving down the road, walking on a sidewalk, etc.?
Posted by: Jim | June 21, 2007 10:59 AM
Jim: that would be the common sense way of looking at it. Of course, that doens't mean that is how they will look at it.
BobApril: I think privacy is an important right for our personal lives given our society's preoccupation with making judgements upon other people's lives and choices, however I agree that in a professional capacity you probably don't need that privacy, and your employer may have a need to monitor you (especially if your job is somehow to police others).
Posted by: Robert | June 21, 2007 11:14 AM
Can't this be appealed under 1A? Producing a video is protected under 1A, and recording video is part of that.
Posted by: Soldats | June 21, 2007 11:24 AM
Robert, I fully agree - my own post on privacy ended with much the same conclusion. Robert Sawyer's "Hominid" books provide a fascinating view on the subject as well.
Jim, apparently that common sense rule is not valid in Pennsylvania. Just guessing...the law was probably enacted to prevent some action that we would agree is abusive, but was worded too generally and has been stretched to fit. The description "outdated Pennsylvania wiretapping law" hints at that possibility. Instead of using lawyers to make our laws and judge cases under them, we should be voting in semanticists and Boolean algebra professors.
Posted by: BobApril | June 21, 2007 11:32 AM
A long time ago I looked up the laws on recording people. I dimly recall that "wiretapping" laws were created in response to Nixon's secret tapings. (Of course I could be wrong...)
I work for the CCTV industry, and my understanding is that there is no problem in recording any sort of video on a public area, even if the person under video surveillance is ignorant of it.
The expectation of privacy comes in recording audio. There are specific rules about that, even in public spaces.
Posted by: Calladus | June 21, 2007 12:01 PM
The fourth amendment protections against unreasonable search and seizure pretty firmly establish a basic right to privacy where a reasonable expectation of privacy exists.
I just can't quite wrap my brain around the idea that police officers, acting in the performance of their duties, could reasonably have such an expectation.
It really wasn't that long ago when this sort of thing was limited to corrupt police forces in oppressive nations where the rule of law hadn't quite found an inroad. But never in the United States. We were better than this.
So much has changed in the last decade that I no longer recognize my nation of birth.
Posted by: kormgar | June 21, 2007 12:18 PM
When I studied linguistics, anytime field work was an issue it was made clear that not only was it considered unethical to make audio recordings without someone's consent, but in almost all circumstances it's illegal as well.
In any case, doesn't this make at least half of all candid YouTube videos illegal for the same reasons? Anytime someone takes a video with corresponding audio and doesn't get consent from anyone whose voice is recorded should fall under laws like this.
Posted by: nicole | June 21, 2007 12:22 PM
Pennsylvania is a "two-party" state; that is, for the audio recording of any communication to be legal, bothparties to the communication must consent to the recording.
Some years ago, I worked on enhancing the intelligibility of a surreptitiously-recorded audio tape that was to be used to impeach the credibility of a witness in a murder trial (the point was to get the guy on tape saying that he didn't actually believe what he had claimed in testimony). The lawyer who brought the job to the studio where I worked explained that the recording had been made in New Jersey because NJ being a "one-party" state, the recording was legal under NJ law and consequently admissible in a Pennsylvania court.
The problem here isn't so much the inadequacy of existing wiretap laws in the current technical environment as the fact that police agencies are attempting to twist these laws into making the documentation of police criminality illegal.
Posted by: Ktesibios | June 21, 2007 3:05 PM
Bob April said:
Which I agree with, but I don't think he went quite far enough. I think that anyone afraid of being recorded doing their job either knows very well or at least strongly suspects that he/she isn't doing it right.
Posted by: twincats | June 21, 2007 5:40 PM
How is video only recording of the cops any different from me being recorded when I walk through the casino at the Wynn or Mandaly Bay, or when I take money out of an ATM? Does this mean that when a cop gets money the people at B of A could be arrested?
Posted by: mess | June 21, 2007 9:17 PM
I'd put it somewhat differently. When someone, such as a police officer, is operating under color of law, he or she is not entitled to a "right of privacy" while he or she is so operating. Why? Because they are operating as agents of the state. And, as such, their actions are not private, but public.
Posted by: raj | June 22, 2007 10:11 AM