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Expecting Privacy In Public

Expecting Privacy In Public

I was watching “Stossel” on the Fox Business Channel recently. Hosted by investigative reporter John Stossel, the show’s theme “Privacy Or Secrecy” looked at issues relating to the perception society’s losing their rights to privacy. From smartphone technology tracking your every move and data mining of personal information from Internet sites, to a movement making the personal information public about legal gun owners. The segment, “Who Watches The Watchmen” caught my eye because it dealt with the subject of whether it should be illegal for citizens to record cops — in public.

The debate over filming/recording cops in the performance of their duties has raged for decades and it’s reaching a fever pitch thanks to cell phone and pint-sized digital cameras — and the ease of immediately posting images onto the internet. So what’s the big deal? Are cameras now considered the new, great equalizers?

Aren’t we known for saying, “If you’ve got nothing to hide, what are you worried about?” This same mentality should also apply to us. If we’re doing our job professionally and within the law, what’ve we got to worry about if someone’s filming us — especially if they’re doing so without getting in our way? If we decide we don’t like being filmed and take our attention away from what we’re doing, we are the ones delaying ourselves, not the person filming us. If the person is making snide comments, ignore it unless the comments are inciting a riot, but there again it will all be caught on film, right?

Should we ever expect to have a right to privacy when we’re in public? I don’t think so; cops are public employees. We can record comments and statements made by suspects/arrestees sitting in the back of our police cars where there’s no expectation of privacy. Thus, there should be an even lower standard of privacy outside the police car. We routinely record and surveil citizens without their permission, so why should there be a separate set of rules regarding them recording or filming us? If a bad guy doesn’t have to consent to being filmed, cops shouldn’t either. Should Internal Affairs be required to get consent to film or record from a cop suspected of criminal or unprofessional conduct?

It’s my understanding wiretapping laws are being applied to such cases where citizens have been arrested for taping officers in the course of their duties. Some states, (Arkansas, California, Connecticut, Florida, Illinois, Louisiana, Massachusetts, Maryland, Montana, New Hampshire, Ohio, Texas and West Virginia) are “2-party consent” states, meaning both (or all) parties must consent before taping. Should this then make all cop surveillance taboo? How slippery of a slope does this need to be?

Law enforcement has been using dash-cams for years, and now recording devices are worn on an officer’s uniform — think TASER’s AXON or EHS’ VIDMIC. I don’t know of any statutes declaring only the police are allowed to collect evidence and that’s the purpose behind these devices. They’re also used to mitigate liability in the event of a misconduct allegation, but it’s still evidence. What’s really disturbing is the officers who appear to be misbehaving are the ones reacting in outrage they’re being videotaped. Perhaps there’s a lesson here?

I think back at the number of times I was made aware I was being taped and I can’t recall ever giving a rat’s ass about it. I was also never hauled into IA to watch a video of me misbehaving either. So maybe those of us getting our skirts up over our heads about this should take a long hard look in the mirror before crying foul.

The reality is, cops have very public jobs, like it or not. We’re expected to behave professionally even when faced with overwhelming challenges. The public generally knows we’ve got a tough job, but no one is forcing us to do it. Some people have an axe to grind with police tactics, there’s no changing this mindset, and they’ll do their best to catch us making mistakes, misbehaving, abusing our authority or losing control. It happens sometimes to the best of us. It’s best to admit our mistakes and take our lumps.

Look at any of the silly reality cop shows on TV these days. Please tell me how dragging around a film crew is any different than what the average citizen is doing. Recording with high-end, professional cameras nets the same results as some guy with an iPhone or pocket video recorder. It’s not reasonable to believe documenting police activity is only acceptable when it makes you look good. Celebrities put up with all the photographing and videotaping associated with their careers — even when they may look like hell — but it’s all part of their very public lives. Cops need to understand we’re not much different.

“Don’t do the crime, if you can’t do the time,” was a favorite saying of a TV show cop (Baretta) from the 1970s. I think it’s still valid today.

 

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  1. Ms. Huntington, you wrote a good article about expecting privacy in public. Most cops I know don’t have a problem with being recorded but we have a problem with equality of the law. I am from Pennsylvania and we have some of most strict wire tapping laws in the nation. It even beats out the Federal Government’s version.

    If I video tape you on a traffic stop I have to advise you that there is audio being recorded. If I enter your home I have to immediately shut off any audio or portable video because it becomes a privacy issue in violation of our wiretapping law. The public can video us but doesn’t have to tell me that there is audio being recorded. That I have a problem with as well as many others. If our law was fair across the board there would be no problem at all.

    • “If I video tape you on a traffic stop I have to advise you that there is audio being recorded.”

      That makes sense, I think it’s reasonable that I have an expectation of privacy inside my own car, so how this applies to the article above escapes me.

    • Oh Joe! says:

      If you want “fair across the board” then members of the public should have equal right to arrest cops if they misbehave.

      The reality is the member of the public observing the problem will be arrested and assaulted.

      A black man helping Rodney King would have led to two black men in hospital. A black man filing Rodney King led to the LA Police being exposed as a gang of cowardly racist thugs.

      • My friend George filmed Rodney King. He is actually a white man from Argentina! Interesting how one can be such an important part of history without realizing it at first.

    • In the vast majority of cases where we see police officers becoming upset, and/or arresting individuals the officers know they’re being recorded. It’s not being done surreptitiously. I can’t recall any instance where a secret recording has been made.

      The part that really bothers me about this whole controversy is that it only involves people with cameras. It has nothing to do with privacy, only with recording. There are many stories of an entire crowd of people watching and listening to a police event, but only those with cameras are singled out, questioned, threatened and/or told to leave.

      I understand privacy. Even if you’re wrong about the reasons and legality, saying that “I don’t want people to see/hear/record/be around at this particular moment” is understandable. It’s logical to want to keep people away from any event that you think should be private.

      But if you’re allowing myself and the general public to witness your actions and ONLY get upset when we record or attempt to record what you’re doing, that is an unacceptable double standard.

    • The law is fair across the board. When you enter a private home the expectation of privacy kicks in. And it’s just good sense as an officer to inform someone involved in a traffic stop that they are being recorded. When you are given the power to arrest, detain, and shoot people in the course of your duties, you should be held to a higher standard, not a lower one. If the state you live in has ridiculous wiretapping laws (and many do, Illinois being the worst, with Massachusetts being a close second), then yes, those laws should be changed; however, it always seems to be police organizations fighting to keep those laws in place. Why is that, do you suppose? I think it’s a case of a few bad apples spoiling the barrel.

    • as a public servant with the power to detain, arrest and kill citizens, you have no expectation of privacy while working in that capacity. however, a citizen is not a public servant and does have a reasonable expectation of privacy, even while sitting in their car during a traffic stop. that is why you must inform someone that audio is being recorded during a traffic stop, whereas they need not inform you they are recording audio while you are operating in an official capacity. that is the basic difference and there is absolutely nothing unfair about that law. In fact it is perfectly fair and reasonable. As soon as you put that uniform on and step out into the street, any expectation of privacy is gone, along with those protections afforded by the law, as it should be.

      Now if you are off duty, and not operating in the capacity of a police officer, then yes, under the law, you do deserve those same protections of being informed that audio is being recorded. It all comes down to the expectation of privacy. And police officers have no claim to privacy while working.

      But really, why do you have a problem with the law at all? Fairness aside, if you have done nothing wrong then you have nothing to worry about, right?

    • noseeum says:

      @joe, you are walking into a private citizen’s life while you are getting paid to do a public job.

      There is no equity in this relationship. You’re the one with the power to arrest someone and take their property. They are the one’s with the potential to have their freedoms taken away based partly on your discretion.

      I see nothing inequitable about you having to ask permission to record someone who you’ve pulled over and the public not having to ask your permission. You’re not just walking around minding your own business. Whoever you pulled over would have been much obliged if you hadn’t.

      You write as if interactions between police and citizens are just like two people running into each other at a bar when that is clearly not the case.

    • Joe;
      Sure, let’s level the playing field. But not just on recording, wiretapping, or video taping. Let’s level it everywhere. For example, LEOs are permitted to flagrantly lie to a suspect/arestee to try to elicit a confession, but if the suspect/arrestee dares to tell the LEO a lie, even if he/she is unaware the statement is false, they can be prosecuted for lying to law enforcement, even if they are not guilty of the underlying crime that the LEO was investigating. You want a level playing field, let’s start there.

    • That’s absolute nonsense. Nobody should have to tell you anything about audio or video recording you while you’re doing your job. You’re an agent of the government and with that comes the responsibility of necessarily being watched by the public. That is fair across the board.

    • Joe,

      Inside a personal vehicle is not being in PUBLIC; nor is being inside a person’s home. Are the instances in which cops complain about being videotaped happening in their personal vehicles or in their homes? No. Cops do their job on public property, in vehicles paid for by taxpayers, and as such, should have no expectation of privacy at any time while on the job.

    • Joe,
      I respectfully disagree. You as an officer are an arm of the government. You have overwhelming power and authority on your side. In other words, since you are the government itself (when on duty), the principles of our republic support the idea that you should be subject at all times to monitoring by the citizenry. We, your fellow citizens, grant you special power, but we do not cede our equal rights.

    • jim48043 says:

      “If I enter your home I have to immediately shut off any audio or portable video because it becomes a privacy issue in violation of our wiretapping law.” And, any citizen who enters an officer’s home, however unlikely that may be, would have similar boundaries to respect. As for laws being fair across the board, citizens don’t have the assistance and cooperation of the state at large; cops usually do.

    • Um, yeah….well you are a public servant to me as a citizen. I am not a citizen serving you. I hired you to provide a service (I’m a taxpayer and your living is therefore taxpayer-funded), you have no right to complain about my camera while performing as my servant.

  2. This is what is scary. Joe does not seem to understand the Penn. wire tape law and he seems to be a police officer.

    “The law does not cover oral communications when the speakers do not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.” See 18 Pa. Cons. Stat. § 5702 (link is to the entire code, choose Title 18, Part II, Article F, Chapter 57, Subchapter A, and then the specific provision). Therefore, you may be able to record in-person conversations occurring in a public place without consent.”

    Ever state except for Ill and Mass has a similar provision.

    But to clear the air, Congress should clarify that public servants can be recorded in public legally.

  3. Jim March says:

    “If the laws were fair for all”, the testimony of a police officer would not be allowed to outweigh the testimony of anyone else in court. But it does – the entire justice system would collapse otherwise. As one obvious example, if a law enforcement officer says I was doing 80 in a 65 zone and I say otherwise, I’m going to lose unless I have hard proof otherwise.

    And THAT in particular is why the citizenry is turning to cellphone cams and the like. To deny the use of such cameras is to support the idea that as a practical matter, officers can lie with no repercussions. And given that an entire word in the English language has been created for that particular practice (“testilying”) we can hardly deny that it happens.

    Things are heating up on both sides. Technology is becoming available that will not only instant-stream video/audio output to a remote server from a 4G cellphone, but will do so from a hidden camera linked to the phone via Bluetooth to a separate, concealed camera. This doesn’t exist yet, but will be available from at least one consumer-electronics source within a month – with at least one more planned for roughly October. Over the next 10+ years as this sort of tech gets cheaper, smaller and more common, it will simply put an end to many forms of police abuse. (Hell, once it gets to around the size of a grain of rice, it’ll end jailhouse rape.)

    Even with early-gen versions of this tech, what happens when somebody points an obvious-cam at law enforcement and then streams the output of a hiddencam to a remote server recording the destruction of first the obviouscam and then the cameraman’s nose? Yeah, RIP one police career, plus yet another big-bucks civil suit and another agency’s badge dishonored.

    On the other side, there are now multiple well-documented cases of law enforcement officers attacking people who point cameras at them…in some cases, with deadly force. An officer with the Las Vegas PD is on suspension after attacking somebody, falsely arresting them for felony assault on the officer, sneering about it on audio, destroying their camera but oops, failing to destroy the camera’s memory card. Expect a civil judgement there well into six figures. Even more extreme cases involve deadly force (only threatened so far, no documented police shootings of this sort yet thank God).

    It’s going to heat up some more, but the technology trends say that law enforcement will lose this fight in spectacular fashion. In the meantime, once remote-streaming hiddencams hit, there will be a period in which some people turn basically “bounty hunter”, looking to record major dollars and major police crimes.

    • This is a great commentary! If you want to see a similar scenario play out, just look to the anti-piracy movement and the RIAA (if you don’t know, they lost the war long ago, but still try to fight battles).

      If you live in a state with strict wiretapping laws, turn your audio off, that’s an easy one :)

      I imagine that before long this will play out like the catholic priest scandal of the last few years, becoming a huge liability for local governments.

  4. Nicolas says:

    Thanks for this fair-minded and cool-headed commentary.

  5. Thank you for this article. It is refreshing to see an officer publicly say something sensible on this topic! I hope you’re still serving – there should be communities lining up for a cop who has this mentality!

  6. Excellent article.

    California is a two-party consent state, however, there is an expectation of privacy clause within the law. Which means someone recording another person does not need their consent if they are in public. For instance (and these just a few examples), at a restaurant, in a police station lobby, or on a public sidewalk.

  7. Great Article.

  8. Excellent! I wish that attitudes like yours weren’t such a rarity among cops.

    Some people have an axe to grind with police tactics.

    I would be one of those. All too often, cops literally get away with murder with no more than a slap on the wrist (typically a vacation that I get to pay for). If there’s ever going to be a healing of the ever-widening split between normal citizens and cops, it’s going to come about through greater scrutiny and accountability of police actions.

    • I think you’re closer than you think. I think the writer is talking about people who criticise *all* police tactics just because they hate the police and it sounds like you criticise *bad* police tactics because they’re harmful.

  9. Texas is a one party state. Only the person recording needs to know for it to be legal.

    • So if no one knows then it’s illegal?

    • That’s not what “one party” means. It’s a short form of “at least one party to a conversation must consent for the conversation to be lawfully recorded”. It doesn’t mean you can record any conversation in Texas as long as you know you’re recording it.

      It should be obvious why this is: wiretapping / eavesdropping laws were not meant to stop people recording conversations that they are having with other people — you can’t eavesdrop on your own conversation. They’re meant to stop people who are not part of the conversation recording them without permission.

  10. John P. says:

    Cops who get upset and arrest someone for filming them in public, are those who have plenty to hide and doubt their own actions are legal. Hence the directed move to detain and charge any witnesses then destroy any evidence of those actions.

    As the author said, if you are professional, lawful and within policy what are you worried about… “If you’ve got nothing to hide, what are you worried about?”

    Wise words indeed… you should listen to yourselves more often.

    But further, more and more of the public are “getting it”.

    Its not about officer safety at all… you’ve told that lie/myth far too many times trying to justify your (mostly) unjustifiable action. And now the public as a whole defaults to a position of doubt when it involves the police.

    Sad to say, but you have no one to blame but yourselves and your fellow cops for this public doubt.

    As someone who deals with cops each and everyday in my line of work. I can tell you that most people, even if privately hold doubts about your actions and your testimony.

    Don’t believe me, just stick around after a jury trial when one of us polls and questions the jury, I guarantee you it’ll be a real eye opener.

    About half of all jurors will tell you they had difficulty with or simply did not find police officers testimony credible. I’ve also had conversations with judges and prosecutors who know the lying cops by name in their courts.

    Remember the Brady List exists because of the actions of the cops, not the public…

    • Oooh boy. Let me guess….”in your line of work”

      Defense attorney.

      Perhaps your views have more to do with where you’re starting from, than the actual actions of police.

      Boy people just love to hate the cops, until they need them don’t they? Then they can’t dial 911 fast enough.

  11. Agente Change says:

    Wow! Great essay! There really is no reasonable expectation of privacy outside of one’s own home. If one is outside the confines of their own domicile, under the open sky, then it matters not if one wears a uniform or is a bum on the street. For police to claim exclusivity of ownership of ‘rights to privacy’ while on the job treads a slippery slope to a ‘Secret Police’ force.

    Instead of transparently enforcing the rule of law and being subject to public scrutiny as ordinary police officers are, secret police intend to operate beyond and above the law in order to suppress dissent through intimidation. Every video of a police officer turning angry and violent or arresting a person with a camera further alienates police from the public, but the problem is NOT because of the video, but because of the officer’s behavior and their attitude demonstrating such contempt for the public.

  12. Irving Washington says:

    FYI: Texas is a one party consent state.

  13. Victims of the System says:

    Not only is this a great article, it’s a one of a kind. I dare you to locate one that even comes close (that’s written by someone in Law Enforcement.)

    How the 1st ‘Joe’ knows the name of the author is a mystery to us. But, if it is Ms. Hutchinson, you have gained an enormous amount of readers/followers and subscribers due to taking a stand on an issue that has divided the public & those that chose to serve the public at large. We also find it hard to believe that only one ‘alleged’ cop has bothered to comment. Hmmm? Could the Unions & Associations have memo-ed everyone to go silent and Joe didn’t get it?

    We are so proud of you for taking this stance in your heart, mind, soul and sharing it with the public at large. We hope to see some real cops (active/retired/cadets) grow a pair and say why they are against being on film in public? We also hope to hear from the ones that have no problem with it all (like the ones that star on anyone of the vast reality Cop/Jail/SWAT shows)?

    In closing – The Chief of the Houston, Texas Police Department, said in an interview with the Houston Chronicle that the filming of police in public will lead to officers being harmed. Not an exact quote but it shows that he’s against it but in a very ignorant way and the public isn’t as stupid as he believes. But it should be known that a shit-load of us have learned martial arts to repel bullies. It goes both ways, it can/has defend(ed) the innocent and can/has show(n) guilt.

  14. Steven Larson says:

    JdL has it right, I think: the widening rift between citizenry and
    police officers is only going to close when there’s accountability.
    And while audio/video recording certainly isn’t the only way to provide
    that accountability, it’s one of them — and it’s here. Attempts to
    stop it are futile, as the technology will continue to become more
    ubiquitous, more agile, more concealable.

    Having had my own unfortunate encounter with a belligerent police officer
    (15 years ago, in NJ; he was driving 60-65 in a 35 with no lights, no
    siren, and I nearly pulled out into his path because he came around
    a corner MUCH faster than I would have ancipated) who screamed at me,
    threatened me, cursed at me, etc. — while, as you might guess, I was
    completely cooperative, addressed him as “officer”, and even apologized
    although it was obvious to both of us that his reckless driving was the
    reason we’d almost collided……I will recording any interaction with
    a police officer.

    Why? Because I’m afraid.

    Which is a terrible thing for a citizen to say, but there it is.

  15. Tea Toe says:

    Maybe if cops were well educated and not straight of the same neighborhoods that bad elements are from then we would not have thugs policing thugs. Most of the cops I work with all think they are above the law in one way or another. And today people take policing as a job just to have a job and not as a real pull toward a life of public service. However I dont have one problem at all with being recorded video or otherwise because I am a professional and do what is right. We are all in this together and poor folks have it rough already and I give everyone the benifit of the doubt. Other than violent crime I most likely let them go. We have bigger things to worry about then the petty things in life. Sad Sad Sad that the ones of us that are screaming are usually the ones that were rent a cops who got a new job.

  16. Diana Powe says:

    Texas is NOT a “two-party” state in terms of recording phone calls.

  17. pat henry says:

    Ohio is also a one party state. Did you do any research or just make a list of random states and claim they were two party consent? I saw an earlier poster correct you on Texas. There is a button called Google. Use it please. You can’t believe everything you read on the internet but that kind of fact checking is quick and effective.

  18. Chelfyn Baxter says:

    Excellent to hear such a fair viewpoint from a policeman on this topic.

    About 20 years ago, the cost of 24/7 video surveillance dropped to trivial levels in terms of company and government budgets, and from then on the public lost their privacy in public spaces. The plummetnig costs and increasing capabilities of smartphones are continuing this trend, only everyone has access to the technology.

    There is a feature known as retrospective recording, where a device, lets say a smartphone in your top pocket (with a small hole surreptitiosly cut out for the tiny lens on the smartphone to see out from), is constantly recording. The upshot of this is that you never miss anything wasting time to pull the camera out, turn it on and press record. If this buffer were stored in the cloud, not the phone’s local memory, then you have an unpolic-able evidence collection system, and it belongs to the public.

    We won’t see a rise in sale of surveillance devices from stores of existing manufacturers though, because there will be app for that, not a niche product in a spy store. It will become, like the CCTV cameras were to business budgets, trivially cheap for the general public to use.

    This is, I believe, inevitable, and our public servants had better get used to the loss of privacy, as they simply won’t have a choice in the matter.

  19. Anonolot says:

    Here here! This was an enjoyable read. Thanks for writing it.

  20. Minor correction, Ohio is not a two-party consent state. See ORC 2933.52 if you’d like to confirm.

  21. reils49 says:

    I usually like Ms. Huntington’s articles but this one annoyed me. I think she forgot how much fun is it to have a cell phone camera stuck in your face when your dealing with a perp, or maybe they didn’t have cell phones the last time she was on the street. I don’t know.

    • Yes, because I’m so sure that people are just walking up to you while you are doing an arrest, and jamming a camera in your face, lol. Hint, a person with a camera standing 8 ft away from you, is not in your face! Try another excuse, maybe that will go over better!

  22. Thanatos says:

    I have NO expectation of privacy once I leave the confines of my home – Including in my own yard – and neither should anyone else. It you do, then either you aren’t paying any attention to the world around you, or you have deluded yourself into believing that it’s still 1940.

    You are recorded and/or monitored by either audio, video or both almost all the time you are out in public in one way or another. The TSA/DHS has a fleet of backscatter vans (same tech as in the airports) cruising the nation x-raying your vehicles. (Not conspiracy crap, I can provide a link to the company that manufactures them and the government press release stating the renewal of contracts to service the fleet). The only privacy you have is what you go out of the way to create or protect for yourself.

  23. What is missing most of the time this subject comes up is a discussion of the fraudulent misapplication of wiretapping laws. When most of these laws were written, they were intended to apply to TELEPHONES and ONLY TELEPHONES. What police bureaucrats and idiot politicians have often seized on are vague phrases like “…any oral communications…” which were still intended to apply ONLY to communications transmitted by TELEPHONES. A simple reading of the law makes it obvious what the intent was.

    There is a world of difference between a law intended to apply to telephones and any other context and only a weasel would claim otherwise. If somebody wants a law that applies to recording that does not involve a telephone, then specifically write one, put it up for legislative debate, and try to enact it.

    Furthermore, there seems to be a widespread failure to comprehend that public officers acting in their public capacity are employees of every individual citizen, are operating under a delegation of authority from every individual citizen, and the idea that an employer can’t record the activity of their own employees while on the job in public is silly. Who is working for who around here?

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