Police Videotapes and Privacy Laws:

As I noted below, I have little helpful to add about the UCLA tasering incident, because I know little about the subject. But I do know something about privacy and free speech, and the video recording of the incident (through a student's video cell phone, if I'm not mistaken) reminds me of this post of mine from a while back, called "A Sad Tale of Privacy Law."

The short summary: The laws of some states -- most clearly, Massachusetts -- make it a crime to "secret[ly]" record what others say, even when the recording is in public and the speakers are police officers who are arresting a suspect. This would certainly outlaw someone's recording the incident using a hidden audio or audio/video recorder (for instance, because the person is afraid that the police will retaliate if he reveals that he's recording them). It may also outlaw the recording if the recorder isn't literally hidden, but also isn't clearly visible to the police (for instance, if a student with a cell phone is in a crowd, and the police don't know what he's doing).

Fortunately, California law is limited to situations that involve "confidential communication[s]," and excludes communications "made in a public gathering . . . or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded"; that law may still pose problems, but it's not as bad as the Massachusetts law.

In any case, here's my earlier post:

Sonia Arrison's column points out, among other things, that some surveillance technology can actually help detect and prevent police abuse: "In California's Orange County, where video cameras were installed in patrol cars to protect against false accusations of excessive force, the tapes have been used to prosecute abusive police officers." (I love the column's title, by the way -- "Watching the Detectives.") I found the column via a post on [Radley Balko's] The Agitator, which pointed out that "the police brutality videotapes we've seen in the news are a good example of how civilians too can use surveilance to keep a check on power. When authorities start preventing us from accessing the same technology they're using, well, then it's time to start getting antsy."

Well, here's a story for you: Many states have laws that ban people from taping conversations without the speakers' permission. Some of them prohibit only taping conversations in which the taper isn't involved (the classic eavesdropping situation); I have no problem with that.

But others prohibit taping conversations unless all parties consent. I can see why this is done, but I can also see why it's troublesome: If you're being blackmailed or threatened, or if someone is saying something that acknowledges that he's guilty of some crime, it seems to me that you have a strong claim of entitlement to record this. The laws are justified by a desire to protect "privacy," but it's far from clear that we should value this privacy when it amounts to my right to deny later what I say now -- especially when what I say now might show that I'm trying to endanger you (or someone else).

And here's an extreme scenario, which happened under a law that seems to be among the broadest in the nation. I quote from last year's decision by the Massachusetts Supreme Judicial Court in Commonwealth v. Hyde:

This case raises the issue whether a motorist may be prosecuted for violating the Massachusetts electronic surveillance statute . . . for secretly tape recording statements made by police officers during a routine traffic stop. A jury in the District Court convicted the defendant on four counts of a complaint charging him with unlawfully intercepting the oral communications of another . . . . We conclude that [the state interception law] strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter. Accordingly, we affirm the judgments of conviction.

. . . On October 26, 1998, just after 10:30 P.M., an Abington police officer stopped the defendant's white Porsche, because the automobile had an excessively loud exhaust system and an unlit rear registration plate light. Three other Abington police officers arrived shortly thereafter and the stop quickly became confrontational. During the course of the stop, which lasted approximately fifteen to twenty minutes, the defendant and his passenger, Daniel Hartesty, were ordered out of the automobile, and Hartesty was pat frisked.

One officer reached into the automobile, picked up a plastic shopping bag that lay on the floor by the passenger seat, and looked inside. (The bag contained compact discs.) At one point, the defendant stated that the stop was "a bunch of bullshit," and that he had been stopped because of his long hair. One officer responded, "Don't lay that shit on me." Later, another officer called the defendant "an asshole." The defendant was asked whether he had any "blow" (cocaine) in the car.

At the conclusion of the stop, the defendant and Hartesty were allowed to leave. No traffic citation was issued to the defendant, and the defendant was not charged with any crime. According to the testimony of one police officer, the defendant was "almost out of control" and the stop "had gone so sour," that it was deemed in everyone's interest simply to give the defendant a verbal warning. Unbeknownst to the officers, however, the defendant had activated a hand-held tape recorder at the inception of the stop and had recorded the entire encounter.

Six days later, the defendant went to the Abington police station to file a formal complaint based on his unfair treatment during the stop. To substantiate his allegations, he produced the tape recording he had made. A subsequent internal investigation conducted by the Abington police department, which concluded on February 1, 1999, exonerated the officers of any misconduct.

In the meantime, the Abington police sought a criminal complaint in the Brockton Division of the District Court Department against the defendant for four counts of wiretapping in violation of [the state law].

So there you have the dark side of "privacy" -- the law aimed at protecting privacy ends up quite improperly restricting people's liberty, and people's ability to protect themselves against police misconduct. Here's part of the court's rationale:

We reject the defendant's argument that the statute is not applicable because the police officers were performing their public duties, and, therefore, had no reasonable expectation of privacy in their words. The statute's preamble expresses the Legislature's general concern that "the uncontrolled development and unrestricted use of modern electronic surveillance devices pose[d] grave dangers to the privacy of all citizens of the commonwealth" and this concern was relied on to justify the ban on the public's clandestine use of such devices.

And this protection of "privacy" extends not just to allegedly misbehaving cops but also to . . . kidnappers calling in ransom requests: "In Commonwealth v. Jackson, this court rejected the argument that, because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim's brother would not be prohibited . . . ."

Now this incident isn't necessarily an indictment of all such laws; perhaps such a law could be properly drafted to exclude audiotaping of conversations with the police, or with people who one reasonably believes are trying to extort something from you or threaten you. But it is a warning that not all laws proposed in the name of "privacy" are good, especially when they try to protect one person's privacy by constraining another's liberty to record conversations to which one is lawfully a party.

Houston Lawyer:
I have always thought that laws preventing the taping of telephone conversations of which you are a declared participant were foolish. They seem specifically designed to encouraging lying about prior conversations.

A more interesting point is which jurisdiction's laws apply to such recording. If someone from California calls me in Texas and I record his conversation without his permission I may have violated California's law but not Texas law. However, I don't see how California would have jurisdiction over me to enforce such a violation.
11.20.2006 3:03pm
RE California COL analysis for this law, see Kearney v. Salomon Smith Barney.
11.20.2006 3:19pm
jimbino (mail):
What we clearly need, a la Copwatch, is a way to radio or WiFi link video and audio of the cops' transgressions to a person in a jurisdiction where it is legal to record it.
11.20.2006 4:01pm
Bill Harshaw (mail) (www):
David Brin's "Transparent Society" a few years back had an interesting discussion on privacy versus transparency. For example, should government employees have any privacy rights (think of all the disclosure statements, etc.)?
11.20.2006 4:55pm
logicnazi (mail) (www):
I've always thought that the legislature should pass a law requiring the police to wear video/audo cameras at all times on pain of having any evidence they find barred from court (of course this would only apply to on duty uniformed officers not off duty or undercover cops).

If this was a universal aspect of uniformed police in the state there would be no worry about privacy as everyone would be aware the police were recording them. Moreover, given the current state of cell phone video cameras and the like I don't see any reason these devices couldn't be placed in the police badges.

At one fell swoop we could both virtually eliminate problems of intimidation and abuse by the police and false accusations of abuse.
11.20.2006 5:14pm
Harvey Mosley (mail):
If I put a bumper sticker on my car that stated all conversations will be recorded, would that make it legal in Massahusetts?
11.20.2006 6:37pm
David O'Brien (mail) (www):
I tend to agree with one of the above posters about having the state's legislature pass a law requiring police officers to wear cameras or some kind of recording equipment. The public would then know and there would be no questions about whether or not this traffic stop is being recorded. Something has to be done in order to protect the rights of the civilians and also the police officers. We all know there those officers who do use their authority to abuse civilians but there are also the civilians who would claim any kind of mistreatment to try and sue the policy department.
11.20.2006 8:41pm
Stealth (mail) (www):
Yes, sadly, my Commonwealth seems to have panicked when it learned about small devices that can - gasp - record sound! And it has yet to uncrap its collective pants over it.
11.20.2006 9:24pm
Houston Lawyer, to make things even more interesting, your hypothetical Texas-California call might very well be routed through Massachussetts.
11.20.2006 9:25pm
Tom952 (mail):
I agree with HL.

It seems logical that I should enjoy a fundamental right to keep a record of my conversations to prove what I said, what I did not say, and what was said to me, in order to insure my personal security.
11.21.2006 8:49am
Public_Defender (mail):
Cops generally do not like being recorded because without a recording, their version of the event prevails. In pretty much any swearing contest between cop and criminal defendant, the cop wins.

But if there's video and audio, the cops must confine their statements to the recording.
11.21.2006 12:48pm