Jan 062012

Public photography is an issue that frequently appears on this site because it’s a real example of technology-enabled speech that all too often authorities try to prevent.  These attempts are often egregious and never balanced out by whatever policy reasons are ostensibly behind them.  But they are particularly odorous when these prohibitions are enforced on people using photography to record the power of the police.

What’s especially insidious is the logic so often used for it, that recording people acting in public — or, more specifically, agents of the state acting in public under the color of the authority granted by the state — might somehow violate a privacy interest.

There are many instances where free speech and privacy do collide, and they are worth careful consideration.  But recording the police is not one such example.  No privacy interest is implicated at all, and pretending otherwise does violence to both true privacy values and free speech.  Fortunately in a recent case the First Circuit recognized this problem.  But as stories like this one from Illinois show, other jurisdictions have been slow in recognizing that wiretap laws cannot be appropriately applied to these sorts of public recordings.

Of course, as even that story illustrates, it’s not just wiretap laws being misapplied to keep people from recording the police.  Obstruction charges are often handy devices police have been using to arrest people who dared to film them.  In addition to the previous article, this other story from Austin has its own example of a felony prosecution of a man who filmed police brutality.

The Illinois article cites the Fraternal Order of Police in Chicago as being in favor of these prohibitions out of the concern that, if edited, pictures or video of their actions may not reflect them accurately. This may be a concern, perhaps even valid, but it doesn’t trump the free speech interest in making and sharing such visual records of their actions. Especially when they could just as easily exculpate as inculpate officers. And ESPECIALLY when their official videos can be so hard to obtain.

Completing this round-up of police photography news is a story from Seattle about police there not only refusing to provide the official, police-recorded dash-cam video of officers’ actions, but then suing the lawyer who asked for it for having asked for it — again, citing state privacy law. If the city attorney’s read of the privacy law is right, the video cannot be divulged for three years — at which point the statute of limitations to hold police accountable for their abuse would have expired. If this law is to work as such (and it would be worth careful consideration to decide whether it actually should) then citizen photography becomes all that more important a tool against the tyranny of the state.

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