Privacy, Police, and Public Duties: Some Interesting Developments

Suppose a Federal Express employee rings your doorbell.  While standing outside on your doorstep and advising you on where to sign for your package, the employee does something unexpected and disturbing, such as threaten you.  As it turns out, you have a tiny camcorder hidden on your clothing.  Does the Fed Ex employee have a reasonable expectation of privacy during your interaction?  Your immediate reaction might be no–what a silly question.  Now, let’s suppose our Fed Ex employee is a police officer and you are in a public place, say a nightclub, and law enforcement enters and begins arresting people.  Do the police officers have a reasonable expectation of privacy as they interact with people in the nightclub?  What if the nightclub attendees use their cell phones to tape the officers as they arrest night club attendees?  Have they violated those officers’ right to privacy and should they face arrest for doing so?  Again, you might scoff at my question–are you kidding?  The latter example is not entirely of my imagination. According to the Yale Daily News, on October 2, 2010, New Haven police officers raided a downtown nightclub at 1 a.m. after receiving reports of a Yale College party of underage students.  According to witnesses, “students who tried to text or photograph the scene were told that they would be handcuffed or arrested if they did not desist.”  The raid took an hour to complete; the night ended with the arrest of five students and the Tasering of an “uncooperative student.”  The arrests weren’t outliers.  For instance, in March 2010, Maryland State Police gave a ticket to Anthony Graber, a staff sergeant for the Maryland Air National Guard, for speeding while driving his motorcycle.  Graber recorded his interaction with the officer–he had a camera on his helmet–and posted the video on YouTube.  Soon thereafter, Graber was jailed briefly after being charged with violating the state’s wiretapping law and with “possessing a device primarily used for the purpose of the surreptitious interception of oral communication.”

As in other jurisdictions, the charges did not stick.  In September 2010, a Harford County Circuit Court judge dismissed the wiretapping charges against Anthony Graber on the grounds that police can have no such expectation in their public, on-the-job communications.  The judge explained: “Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. ‘Sed quis custodiet ipsos cutodes’ (“Who watches the watchmen?”).”   The judge refused to find Graber’s use of the helmet cam illegal, noting that the state’s argument would render illegal “almost every cell phone, Blackberry, and every similar device, not to mention dictation equipment and other types of recording devices.”  (Similarly, in the Yale matter, the Chief of Police publicly stated that the students had the right to tape the officers).

Fast forward to September 2011.  Government Technology reports that the U.S. Department of Justice has granted $500,000 to the Phoenix Police Department and the Arizona State University College of Public Programs to buy 50 video camera systems that police officers will wear on their uniforms.  In exchange for this “Smart Policing” grant, the Phoenix Police Department and ASU will study how the video cameras impact policing effectiveness and the public’s satisfaction with officers’ performance.  Last year, the Community Engagement and Outreach Task Force recommended that city police pilot the wearable cameras to improve the department’s relationship with the public and to encourage a higher level of professionalism.  (Just after the Yale nightclub fiasco, the New Haven Police Chief noted his interest in having his officers wear cameras on the grounds that there’s always two sides to a story and a citizen’s camera may not “tell the entire story”).  One way to view this story is that Phoenix PD recognized its problematic relationship with the public, which might prompt citizens to use their mobile devices to tape officers engaged in bad practices, and went on the offensive.  It’s a panoptic turn perhaps designed to answer the Maryland Judge’s question of “Who watches the watchmen?”  The Phoenix PD shows the public that it is willing to stand behind its promise to protect and adopts a strategy to deter police misconduct.  It gets a serious unacknowledged “benefit”–the surveillance of the public wherever the police officer goes including a suspect’s home, business, etc.  I put “benefits” in quotes because there’s an important trade-off in the public’s privacy interests.  Those feeds could potentially be monitored by state-federal partnerships known as fusion centers, which my co-blogger Frank Pasquale and I tackle in our piece “Network Accountability for the Domestic Intelligence Apparatus” recently published in the Hastings Law Journal.  There’s another concern too.  The “on-camera all of the time” feeling may make police officers jittery and less willing to trust their instincts in an emergency.  That’s speculative but surely possible.  So responding to the possibility that the public might, on occasion, tape police officers in the line of duty with persistent surveillance of the public seems troubling.

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3 Responses

  1. It’s worth noting that the Federal wiretap law appears to explicitly permit listening to police communications. 18 USC 2511 (2)(g)(ii)(II): “It shall not be unlawful under this chapter or chapter 121 of this title for any person … to intercept any radio communication which is transmitted … by any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public”.

  2. Howard Wasserman says:

    Three states–Massachusetts, Illinois, and Oregon–apply their anti-wiretap laws to surreptitious or unconsented-to recording of police encounters.

    There is a chicken-and-egg problem here: Are police ramping up recording in response to the public being able to record? Or is the public recording in response to police recording, particularly traffic stops? I have argued in print that the latter justifies a First Amendment liberty to record public events. The result is going to be dueling videos–and all of Dan Kahan’s cultural cognition we can handle.

  3. I’m on the record defending the “no privacy in public” rule in part because it permits citizens to record and publicize misconduct by their government officials, including the police ( However, the concept of a 180 degree turn of the camera initially is troubling even to a “more truthful information is better at all costs” person like me. This is because shifting the director/source of the recording from the individual citizen to the police changes the pragmatic harms versus benefits analysis. For example, a new potential harm of this type of recording would be the likely disincentive to call the police out of a fear that one will be videotaped when talking with them, and possibly retaliated against later. That harm is not present (or at least is less pronounced) when the recording is made by, and owned by, the individual.

    Anyone know if the AZ police plan to offer a “live feed” of sorts from their camera-wielding officers to permit the highest level of public scrutiny?