Want to Record The Cops? Know Your Rights

There are some very disturbing videos circulating the Internet right now, depicting the deaths of unarmed civilians at the hands of trained, armed men. Many of these videos even show individuals being shot in the back, or as they try to flee.

These are videos of police officers in America killing unarmed black men like Oscar Grant and Eric Garner. And, as the most recent case shows, without these recordings, much of America might not have any idea exactly how much of a problem this is.

Citizen videos of law enforcement encounters are more valuable than ever. And for those who are wondering—it is legal to record the police.

The police don’t always seem aware of this. There have been incidents across the country of police telling people to stop filming, and sometimes seizing their camera or smartphone, or even arresting them, when they don’t comply.

In the most recent citizen-filmed incident to gain widespread media attention, on April 4, white police officer Michael Slager shot and killed 50-year-old black man Walter Scott in the back as he ran away in North Charleston, South Carolina. Bystander Feiden Santana filmed the encounter, which started with a traffic stop. After Santana’s video surfaced, the officer was arrested and charged with murder. Santana said that he is scared of what might happen to him. He also considered deleting the video, and doing nothing with it. And Santana is not the only person who may be intimidated by the prospect of filming the police, with good reason.

That’s why, in addition to EFF Attorney Sophia Cope's legal analysis highlighting some of the recent case law establishing the right to film police officers, we’re sharing some basic information cop watchers should know.

What Courts Have Said

Courts across the country have held that there is a First Amendment right to openly record the police. Courts have also held, however, that individuals cannot interfere with police operations, and that wiretapping statutes that prohibit secretly recording may apply to recording the police. But underlying these decisions is the understanding that recording the police is constitutionally protected.

Know Your Rights and Be Safe

While it has been established that individuals have the right to record the police, what happens on the street frequently does not match the law. Also, if you’re thinking about filming the police, it’s likely you’ll have more police encounters than you otherwise would.

The National Lawyers Guild (NLG) is a bar association that does police accountability work. The National Lawyers Guild Legal Observer program is focused on watching the police at protests. CopBlock and Cop Watch are loosely organized groups that have chapters across the country, and provide resources on filming the police everyday.

Here are the most essential things to keep in mind:

    Stay calm and courteous, even though the situation may be stressful. Remember—if you get arrested or get into an altercation with the police, you won’t be able to keep filming them!

    Be sure that you are not interfering with police operations, and stand at a safe distance from any encounter you film.

    Your right to record audio surreptitiously of police carrying out their duties in public may vary from state to state. You should check your state law to know the fullest extent of your rights, but the lowest risk way to record is to hold your device in plain view of the officers.

    Do not lie to police officers. If they ask whether you are recording, answer honestly.

    If the police start interacting with you, treat the encounter as you would any encounter with law enforcement—in fact, you may want to be extra careful, since as the repeated incidents of police seizing cameras and smartphones demonstrate, it may make you more of a target.

    If you are at a demonstration, police will often issue a dispersal order—in general, they will declare a protest an unlawful assembly and tell people to leave. Unless you are granted permission to stay, that order applies to you, too. If you do not comply, you should expect to be arrested.

    While it is not legal for an officer to order you to move because you are recording, they may still order you to move. If you do not comply you could be arrested. If you do want to comply, consider complying with the smallest movement possible, and verbally confirming that you are complying with their orders. For example, if you are standing five feet from an officer, and they say “You need to move back,” you might want to consider calmly saying “yes, officer, I am moving back” while taking a few steps back.

Fast Track Bill Would Legitimize White House Secrecy and Clear the Way for Anti-User Trade Deals

Following months of protest, Congress has finally put forth bicameral Fast Track legislation today to rush trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) through Congress. Sens. Orrin Hatch and Ron Wyden, and Rep. Paul Ryan, respectively, introduced the bill titled the Bipartisan Congressional Trade Priorities and Accountability Act of 2015. With Fast Track, lawmakers will be shirking their constitutional authority over trade policy, letting the White House and the U.S. Trade Representative pass Internet rules in back room meetings with corporate industry groups. If this passes, lawmakers would only have a small window of time to conduct hearings over trade provisions and give a yea-or-nay vote on ratification of the agreement without any ability to amend it before they bind the United States to its terms.

The Fast Track bill contains some minor procedural improvements from the version of the bill introduced last year. However, these fixes will do little to nothing to address the threats of restrictive digital regulations on users rights in the TPP or TTIP. The biggest of these changes is language that would create a new position of Chief Transparency Officer that would supposedly have the authority to “consult with Congress on transparency policy, coordinate transparency in trade negotiations, engage and assist the public, and advise the United States Trade Representative on transparency policy.”

However, given the strict rules of confidentiality of existing, almost completed trade deals and those outlined in the Fast Track bill itself, we have no reason to believe that this officer would have much power to do anything meaningful to improve trade transparency, such as releasing the text of the agreement to the public prior to the completion of negotiations. As it stands, the text only has to be released to the public 60 days before it is signed, at which time the text is already locked down from any further amendments.

    The bill’s only new feature in this respect is a new “consultation and compliance” procedure that would only be usable after an agreement was already signed and entered into, at which point changes to the pact could be made only if all other negotiating parties agreed to reopen negotiations and then agreed to the changes (likely after extracting further concessions from the United States). That process would require approval by 60 Senators to take a pact off of Fast Track consideration, even though a simple majority “no” vote in the Senate would have the same effect on an agreement.

Thus, essentially the Fast Track bill does the same as it ever did—tying the hands of Congress so that it is unable to give meaningful input into the agreement during its drafting, or to thoroughly review the agreement once it is completed.

A main feature of the bill is its negotiation objectives, which set the parameters within which the President is authorized to negotiate the agreement. If Congress considers that the text ultimately deviates from these objectives, it can vote the agreement down. Some of these negotiation objectives have been added or changed since the previous Fast Track bill, but none of these provide any comfort to us on the troubling issues from the Intellectual Property, E-Commerce, and Investment chapters of the TPP. Indeed, some of the new text raise concerns. For example:

    Governments are to “refrain from implementing trade-related measures that impede digital trade in goods and services, restrict cross-border data flows, or require local storage or processing of data”. Data flows and the location of the processing of data aren't solely or even primarily trade issues; they are human rights issues that can affect privacy, free expression and more. The discussion about whether laws that require local storage and processing of certain kinds of sensitive personal data are protective of user rights, for instance, cannot take place in the secret enclaves of a trade negotiation. The bill does allow for exceptions as required to further "legitimate policy objectives", but only where these "are the least restrictive on trade" and "promote an open market environment".

    Trade secrets collected by governments are to be protected against disclosure except in "exceptional circumstances to protect the public, or where such information is effectively protected against unfair competition". But there are other cases in which there may be an important public interest in the disclosure of such trade secrets, such as where they reveal past misdeeds, or throw transparency onto the activities of corporations executing public functions.

But more troubling than what has been included in the negotiating objectives, is what has been excluded. There is literally nothing to require balance in copyright, such as the fair use right. On the contrary; if a country's adoption of a fair use style right causes loss to a foreign investor, it could even be challenged as a breach of the agreement, under the investor-state dispute settlement (ISDS) provisions. Further, the "Intellectual Property" section of today's bill is virtually identical to the version introduced in 2002, and what minor changes there are do not change the previous text's evident antipathy for fair use. So while the new bill has added, as an objective, "to ensure that trade agreements foster innovation and promote access to medicines," an unchanged objective is "providing strong enforcement of intellectual property rights." What happens if those two objectives are in conflict? For example, in many industries, thin copyright and patent restrictions have proven to be more conducive to innovation than the thick, "strong" measures the bill requires. Some of our most innovative industries have been built on fair use and other exceptions to copyright—and that's even more obvious now than it was in 2002. The unchanged language suggests the underlying assumption of the drafters is that more IP restrictions mean more innovation and access, and that's an assumption that's plainly false.

Why are campus administrators invoking civility to silence critical speech?

In August 2014, Steven Salaita was scheduled to take up a position as a tenured associate professor in the American Indian and Indigenous Studies program at the University of Illinois at Urbana-Champaign. Salaita had resigned his job at Virginia Tech, where he had tenure, and ordered books and submitted syllabuses for his new courses at UIUC. He had every reason to believe his future was secure. Although his appointment was contingent on a final approval by the board of trustees, which would meet two weeks after the school year began, Salaita had been assured that this was merely a formality. It wasn’t: The board refused to ratify his appointment.

The reason was the uproar over his comments on Twitter, where Salaita had condemned—often using fierce invective—Israel’s violence during its 2014 military attack on Gaza. Well-organized supporters of Israel alerted the university to his tweets, accused him of anti-Semitism, and questioned his scholarship as well as his political judgment. Salaita’s scholarship, on colonial settler occupations, has been critical of Israeli policy toward the Palestinians. Protesters deluged the chancellor’s office with e-mails warning that if Salaita were hired, they would withdraw their support of the university. After meeting with the university president and the board of trustees in late July, the chancellor, Phyllis Wise, informed Salaita that she could not recommend him to the board. Wise stated that the impassioned rhetoric of his tweets was a sure sign of his behavior as a teacher; he would be intolerant in the classroom, threatening the comfort, safety, and security of his students. There was no evidence for this inference from tweets to classroom: Salaita’s record at Virginia Tech indicated he was a respected teacher, tolerant of a wide range of ideas. But for Wise, that evidence was beside the point.

In her letter, the chancellor drew attention to civility, emphasizing it as a requirement for the exercise of academic freedom: “What we cannot and will not tolerate at the University of Illinois are personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.” In Wise’s thinking, “viewpoints” have protected status. If that’s the case, will anyone who demeans Nazism, terrorism, racism, sexism, homophobia, or creationism be subject to punishment on her campus? Or are certain selective instances of “disrespect”—in this case, for the current Israeli government—the real issue here?

Since Wise’s letter, a number of university leaders have echoed her invocation of civility. In September, Nicholas Dirks—once a postcolonial historian and anthropologist who wrote critically of British rule in India, and now chancellor of the University of California, Berkeley—released a statement to his campus community. Reminding his constituents that 2014 was the 50th anniversary of the Free Speech Movement, he called for civility in terms that should surprise anyone who has studied the First Amendment or the long history of academic freedom: “We can only exercise our right to free speech insofar as we feel safe and respected in doing so, and this in turn requires that people treat each other with civility. Simply put, courteousness and respect in words and deeds are basic preconditions to any meaningful exchange of ideas. In this sense, free speech and civility are two sides of a single coin—the coin of open, democratic society.” Dirks seems to have forgotten that the Free Speech Movement was not an event characterized by civility either in its expression or in its suppression.

Within days of Dirks’s statement, Eric Barron, the president of Penn State, released a video message to his own community deploring the erosion of civility in university discourse. The video was provoked by the controversy over a child-sexual-abuse scandal involving coaches of the school’s fabled football team. “Respect is a core value at Penn State,” Barron said in a statement. And so “we ask you to consciously choose civility and to support those whose words and actions serve to promote respectful disagreement and thereby strengthen our community.”

“Civility” has become a watch word for academic administrators. Earlier this year, Inside Higher Ed released a survey of college and university chief academic officers, which found that “a majority of provosts are concerned about declining faculty civility in American higher education.” Most of these provosts also “believe that civility is a legitimate criterion in hiring and evaluating faculty members,” and most think that faculty incivility is directed primarily at administrators. The survey brought into the open what has perhaps long been an unarticulated requirement for promotion and tenure: a certain kind of deference to those in power.