Wednesday, April 5, 2017

Is it Illegal in the USA to Record People in Public?

Links

Is it Illegal in the USA to Record People in Public?
Multiple Responses
1.
The legal limits of recording conduct and conversations
Type:
ESSAY
At first, the question of whether to tape record conduct or conversations seems like a matter of personal preference. Some information gatherers see taping as an indispensable tool, while others don’t like the formality or extra burden it may impose.

However, there are important questions of law that must be addressed first. And most often, what you want to record and where will likely dictate the legal limits of the activity.

Recording in public
The general rule is that people in public places must assume they might be photographed or recorded, particularly if they are officials carrying out their public duties. Therefore, you may photograph, film and record what you can easily see or hear in public places, even if the recorded people have not specifically consented to such, provided you do not harass, trespass or otherwise intrude. This includes shooting footage of a private property from a public sidewalk, as long as you do not engage in overzealous surveillance, such as the offensive use, for example, of a telephoto lens to record intimate activities inside the bedroom or bathroom of a private residence.

Under this general rule, it would seem you have the right to record police in the performance of their public duties. However, courts are divided on this issue; some have upheld the authority of police officers who were the subject of citizen recordings to arrest the party who made the recording and charge him or her with violating the state wiretapping or eavesdropping law’s requirement that all parties to a conversation consent to its recording. See below for more on this consent requirement.  

Recording in private
Even the most well-known public figures have a reasonable expectation of privacy when they speak in their homes or other private retreats. Accordingly, courts and the government have made it illegal for information gatherers and others to engage in any of the following activities (Always keep in mind, however, that these prohibitions may not apply to law enforcement and other government officials):
  • bugging a room, secretly monitoring telephone conversations (to which the recording subject is not a party) or intercepting computer communications (publishers may, however, disseminate illegally taped conversations if they are of great public interest and the publisher broke no law in acquiring them);
  • hacking into telephone systems to acquire previously recorded conversations; and
  • acquiring a person’s phone records from a phone company by posing as someone authorized to see the records.

The law is generally more tolerant of participants who record their own conversations than of third parties who record conversations to which they are not a party. Even so, both federal and state statutes that govern such participant monitoring set forth situations where recording and disclosing participant communications can give rise to civil suits by the “injured” party, as well as criminal prosecution.

As such, it is critical for you to know which statutes apply to you and your rights and responsibilities under them. The Reporters Committee’s comprehensive Can We Tape? provides these answers, including a discussion of the applicable statutory provisions in your state, as well as guidance on how to proceed when you want to record an interstate telephone conversation.

When considering these statutes, pay particularly close attention to their consent requirement, or that part of the statute that dictates the number of parties to a conversation that must consent to its recording. Although only twelve states require the consent of all parties to the conversation, it is a good idea to always get consent of all parties, preferably on tape, before recording any conversation in any state.

It is also important to remember that regardless of federal or state laws, the secret recording by a participant to a conversation may be a tortious intrusion, particularly if deception is used to bring electronic eavesdropping equipment into a private place like a home.      

2.
Know Your Rights When Taking Photos and Making Video and Audio Recordings
Taking photographs and videos of things that are plainly visible from public spaces is your constitutional right. That includes federal buildings, transportation facilities, and police and other government officials carrying out their duties. Unfortunately, law enforcement officers often order people to stop taking photographs or video in public places, and sometimes harass, detain or even arrest people who use their cameras or cell phone recording devices in public.

Your Right to Take Videos and Photographs
When in outdoor public spaces where you are legally present, you have the right to capture any image that is in plain view (see note below about sound recording). That includes pictures and videos of federal buildings, transportation facilities (including airports), and police officers.
  • When you are on private property, the property owner sets the rules about the taking of photographs or videos. If you disobey property owners' rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
  • Police should not order you to stop taking pictures or video. Under no circumstances should they demand that you delete your photographs or video.
  • Police officers may order citizens to cease activities that are truly interfering with legitimate law enforcement operations. In general, a court will trust an officer's judgment about what is "interfering" more than yours. So if an officer orders you to stand back, do so.
  • If the officer says he/she will arrest you if you continue to use your camera, in most circumstances it is better to put the camera away and call the ACLU for help, rather than risking arrest.
  • Police officers may not generally confiscate or demand to view your photographs or video or search the contents your cell phone without a warrant. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them). (Note: This section has been updated to reflect the June 2014 US Supreme Court decision in Riley v. California, in which the court held that police need a warrant to search a cellphone.)

Using a Video Recorder (Including Cell Phones) With Audio Capacity
You have a right to capture images in public places, but you don't always have a right to record what people say. Pennsylvania's Wiretap Law makes it illegal to record private conversations - which can include conversations in public places - without the consent of all parties to the conversation. Conversations with police in the course of their duties are not private conversations, but many other things you may record on a public street are.
  • You have the right to videotape and audiotape police officers performing official duties in public. It is not a violation of the Pennsylvania Wiretap Law to do so. That means you can record an officer during a traffic stop, during an interrogation, or while he or she is making an arrest.
  • You can record people protesting or giving speeches in public.
  • The Pennsylvania Wiretap Law does make it illegal to record any electronically transmitted conversation. Never record a telephone conversation without the permission of all parties to the conversation.

If You Are Stopped or Detained for Taking Photographs or Videos
  • Always remain polite and never physically resist a police officer.
  • If stopped for photography, ask if you are free to go. If the officer says no, then you are being detained, something an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.
  • If you are detained, politely state that you believe you have the right to take pictures or video and that you do not consent to the officer looking through or deleting anything on your camera. But if the officer reaches for your camera or phone, do not resist. Simply repeat that you do not consent to any search or seizure. You don't want to invite a charge for "resisting arrest."

3.
RECORDING IN PUBLIC PLACES AND YOUR FIRST AMENDMENT RIGHTS
Ever since video cameras became accessible to the masses, there's been grand debate on what one can or cannot record while in public.

Simplicity is often elusive when it comes to legal matters, so it should be no surprise that the answers to questions related to recording video and audio in public places contain few pat answers other than "it's complicated.- Indeed, that is because laws, regulations and rules in these matters differ between federal, state and municipal governments. Further complications arise when looking at such concerns as still photography versus audio-visual recording and editorial versus commercial use.

Key Words: Defining the Laws
In an attempt to provide some broad guidelines, it is helpful to understand a few main concepts. The First Amendment to the U.S. Constitution states "Congress shall make no law ... abridging the freedom of speech, or of the press. ..." This has been interpreted to mean that no government entity may curtail free speech and press activities. Photography in its broadest sense is protected as a form of free expression; however, constitutional protections are not absolute and may be subject to "reasonable time, place and manner restrictions," and the main keyword is "reasonable."

As a general rule, both the public and the press have a right to record government officials or matters of public interest in a public place. But it is one thing for a photographer to know his or her rights when recording public officials and quite another for security guards, police officers and government officials to be aware of or even care about those rights.

While it is not illegal to photograph or record images in public places in almost every state, some states have eavesdropping laws that criminalize recording oral conversations without permission, which has led to arrests due to the fact that videographers don't usually make silent movies. When arrested, photographers are also typically charged with disorderly conduct, obstruction of governmental administration or trespass.

Your Obligations and Your Rights
Although there is no obligation to show your images to a law enforcement officer, you may be asked to do so. It is important to know that you do not have to consent to such a request. Under certain conditions known as "exigent circumstances," where an officer believes that your recording might contain evidence of a crime and subsequently seize your equipment and material in order to prevent it from being lost or destroyed. However, it may not be searched, viewed and copied without proper legal authority such as a search warrant or subpoena. Under no circumstances may anyone delete those recordings or order you or a third party to do so.

What to Do if Encountered
So what steps does a videographer or photographer take when faced with these ever-increasing encounters? Obviously every situation is different, but it is important to stay calm, speak in a conversational tone and be respectful. Whenever possible, try to keep recording the interaction as it may be your best evidence of what actually happened should you get arrested. If the officer or guard is willing to talk, which often they are not, try to explain your position and respectfully assert your understanding of your rights. If the officer still tries to stop you, request to speak to a supervisory or public information officer, and if that is not possible, you may be faced with a personal decision as to whether what you are doing is important enough to risk arrest. No one else can make that decision for you, as it is your liberty that is at stake. In case you are arrested, you may win the legal battle but that usually takes some time and may also be costly.

A Landmark Case When Lines Become Blurred
Take the case of Simon Glik who was arrested in 2007 by Boston police for recording the arrest of another citizen. Glik was charged, among other violations, with violating the state's eavesdropping law which prohibited the surreptitious recording of oral conversations. Those charges were dropped and he commenced a federal civil rights lawsuit against the officers and the police department. After a widely heralded decision by the U.S. Court of Appeal for the First Circuit, upholding "the fundamental and virtually self-evident nature of the First Amendment's protections" of the "right to film government officials or matters of public interest in public space," the case was recently settled with the City of Boston paying Glik $170,000.

That First Circuit decision also addresses the fact that the public and the press have a "coextensive" right to gather information including photography and recording audio in public places, recognizing that "changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw." Additionally, the court stated, "The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew." The First Amendment right also applies to those individuals with and without press credentials.

Landmark Case Gets National Attention
Unfortunately the decision in Glik is binding only in Massachusetts, New Hampshire, Maine, Rhode Island and Puerto Rico. However, its persuasive reasoning has been cited by courts and lawyers nationwide. Glik was an attorney himself in this case and had the help of the American Civil Liberties Union along with the support of many First Amendment organizations. In another case, a freelance photographer filed suit against the Suffolk County Police for similar civil rights violations.

On May 8, 2012 the United States Court of Appeals for the Seventh Circuit granted a preliminary injunction in ACLU v. Alvarez, blocking enforcement of the Illinois eavesdropping statute as it applies to audio recording of police performing "their duties in public places and engaging in public communications audible to persons who witness the events." What this means is that in Illinois, Indiana and Wisconsin, permission is not required to record (video and audio) police officers or anyone else while they are in a public place (see below for limitations on how those recordings may or may not be used.)

Homeland Security
Another measure that has led to photography as a suspicious activity comes from language found in documents published by the federal government. The ISE-SAR Criteria Guidance, issued by the Department of Homeland Security, lists photography as a potential criminal or non-criminal activity. "Taking pictures or video of facilities, buildings, or infrastructure in a manner that would arouse suspicion in a reasonable person. Examples include taking pictures or video of infrequently used access points, personnel performing security functions (patrols, badge/vehicle checking), security-related equipment (perimeter fencing, security cameras), etc." The ISE-SAR Criteria Guidance also notes: "These activities are generally First Amendment-protected activities and should not be reported in a SAR or ISE-SAR absent articulable facts and circumstances that support the source agency's suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism, including evidence of pre-operational planning related to terrorism. Race, ethnicity, national origin, or religious affiliation should not be considered as factors that create suspicion (although these factors may used as specific suspect descriptions)."

While this revised definition of photography is certainly welcome, there are many organizations including the Los Angeles Police Department that still define under suspicious activity someone who "takes pictures or video footage (with no apparent esthetic value, i.e., camera angles, security equipment, security personnel, traffic lights, building entrances, etc.)"

Unfortunately these definitions have erroneously created the impression in law enforcement circles that photography is a categorically suspicious activity rather than a constitutionally protected form of expression. It has also led many officers to stop, question, interfere with and detain those recording on city streets in an unrealistic and expanded view that automatically equates photography with terrorist or criminal surveillance.

No Farm Shots? Driving Shots?
New legislation in a number of states has also criminalized photography and recording of farm activities and in some states makes it illegal to possess and distribute such images and recordings. These bills have been introduced in a number of states including: Indiana (SB 184), Florida (SB 1184/HB 1021), Minnesota (HF 1369/ SF 1118), Missouri (SB 695), Nebraska (LB 915), Illinois (HB 5143), Iowa (HF 589), Utah (HB 187), and New York (S5172). Another Illinois bill (HB 5099) prohibits the use of devices capable of digital photography and videography while operating a motor vehicle.

When is Public Really Public?
Once again, the general rule for recording is: where there is public access in such traditional public forums as a sidewalk or a park you are permitted to record anything in plain sight (i.e. buildings, people) because in such places there is no reasonable expectation of privacy. In other areas that are generally open to the public but may be privately owned such as a mall, recording may be restricted either by posted signs or by mall personnel. In order to avoid confrontations it is always a good idea to check with property owners to obtain permission before recording.

The Private Sector
It also is important to remember that the First Amendment only protects against governmental limitations. Businesses and non-government organizations may require special credentials in order to gain entry to an event and to record. Usually such credentials may only be obtained by agreeing to or meeting certain requirements specified in writing, such as NFL sideline passes. Many press credentials issued by law enforcement agencies allow the bearer to cross police and fire lines under certain conditions. Whenever possible, apply for credentials to specific events well in advance because a basic press pass (if you have one) may not suffice.

Recording Public Meetings
The right to record public officials or record at public meetings is another question of concern to photographers. Most governments have freedom of information statutes as well as open meeting laws that address those questions; however, it is important to check the law in your area. For example, in California, when attending a meeting of a governmental body that is required by law to be open to the public, you may record audio and/or video unless the governing authority makes a determination that such recordings may disrupt the proceedings because of such things as noise, lighting or obstructing a view. These restrictions must be reasonably related to achieving a governmental purpose and may not be imposed because the officials do not like the opinions of the person doing the recording. The same would be true of a government official out in public or attending a public meeting.

Public, Private, Permits & Proof
There is also a very big distinction between recordings made for editorial (journalistic) purposes and those made for commercial gain (advertising or product sale). Depending on the type of photography in question, many parks and transit systems require those wishing to record to obtain a permit in advance. Usually such permits require that a fee be paid and that proof of insurance be provided. Another important difference is the need for model releases when recording someone for commercial purposes. It is very important to remember that just because you may have a right to record something or someone does not mean you have a right to use that material in any way you choose, even when shooting in a public place.

Resources for Support
The National Press Photographers Association (NPPA) has been involved in many of the incidents mentioned above.

There is no excuse for police and security officers to intentionally disregard a citizen's right to record an event occurring in a public place but it will continue to happen until departments create better guidelines, conduct proper training and administer discipline when appropriate. This will only come about through greater awareness of these incidents and strong advocacy on behalf of journalists and citizens by such groups as the Reporters Committee for Freedom of the Press, NPPA and personal accounts from blogs like Photography Is Not A Crime. It may also require filing suit in egregious cases, such as the one recently brought by NPPA member Philip Datz.

Being Aware is Key
In a time of technology and terrorism, photojournalists throughout the world have risked and in some cases given their lives to provide visual proof of governmental activities. Sadly, what is viewed as heroic abroad is often considered as suspect at home. It is therefore incumbent that those who wish to exercise these freedoms, be aware of their rights and do their best to counter such abridgments through heightened awareness and education.

4.
Hey there!

I'm writing this in class so I don't have time to write too much, Papabear. At the end of school last year, I nearly broke my ankle doing a shuffle dance on the last day of school. Someone recorded my pain and they put it on YouTube. I recently found out about this, and found the video. I found a way to track the IP address of the user, so that I may find out exactly who this is, and may notify the police, and possibly sue the person who did this. Things like this have, as I told you in my last letter, gone on for much too long, and I think it's time to strike back.

Is it legal for me to track the person's IP, first of all? And will I have grounds for a lawsuit if I can identify the uploader?

I think I'm finally ready to do this and stand up for myself , and I just need those questions answered before I do. Thank you in advance for your advice.

Sincerely, Kodachi Devil Squirrel (KodaDS)

* * *

Dear Kodachi,

This is an excellent question in today’s YouTube nutty world, and thank you for writing about it. The short answer to your question is: you can sue people for anything, but in this case you will not win. Why is that? Because you were taped in a public place, and according to my legal consultant, the courts have ruled repeatedly in such cases that when you are in a public place you have “no reasonable expectation of privacy.” This is why you can turn on the TV and see videos of people walking into mall water fountains while on their cell phones.

What you CAN do is contact YouTube and ask them to remove the video because it was posted without your permission. They might or might not do that for you, I don’t know.

The situation would be different if you were, say, in your bedroom and someone videotaped you doing something silly or embarrassing in private.

A note to all those video-happy furries out there who like to record stuff: it is always best to get a signature on a waiver form from people you record before you post them in a public forum, such as YouTube. This covers your furry butt from possible legal action, especially in the case of recording minors.

We are living in a peeping Tom world, folks, where everyone is armed with a tiny recording device everywhere you go. Just something to keep in mind, everyfur.

As for as tracing someone's IP address, sure, that is analogous to researching and finding someone's mailing address. Nothing illegal about it, as long as it doesn't go further than that, such as using that information to try and access computer files.

Hugs,

Papabear

5.
Can I record a video in a public place without consent?
If I'm in a public place (a cafeteria, bar, or shop), and I'm recording a video of the scene, without any specific detail of a specific person, am I still allowed to do so? Even if this is against the owner's internal policy?

“To my knowledge, in the US and Mexico, photography and video are allowed on public spaces (if you can see it, you can shoot it), provided you are not infringing on a person's objective expectation of privacy (taking a picture of someone in a public restroom is a no-no)

Cafeterias, Bars, and overall businesses that are open to the general public are regarded as privately-owned public spaces. That means that you are free to do whatever is permitted on any public space, as long as it doesn't violate the internal policy of the property. This includes taking pictures.

If the owner, or manager, of a restaurant asks you to stop taking pictures INSIDE the premises, you have to comply.

Under no circumstance are you required to surrender your camera or storage card, nor to delete pictures from your camera, unless you are forced by a court order.

Note that, if a person believes you may be harassing them, or you become a nuisance, said person can call on the cops, who may or may not enforce their powers and make you stop taking pictures.

Useful links:

It’s legal to record video in a public place. You may have to obtain a license if you are doing work for commercial purposes.

However, you referred to bars and shops - these are not public places, and therefore, your presence is subject to the approval of business owners. While you can access them from the public domain, and they are open to the public, etc., a privately-owned area and the individuals with control over that domain do not have to accept your conduct there. It’s also just common courtesy that you obtain permission before doing a shoot in someone’s space, as they might prefer not contribute to your recording for any variety of reasons.”

No comments:

Post a Comment