Do You Have the Right to Secretly Record Police Actions?

Irving Espinosa-Rodrigue awaits a pretrial hearing in January in Massachusetts for allegedly violating the state’s wiretapping law by secretly recording a police officer during a traffic stop.  In 2007, Simon Glick openly used his cellphone to videotape police arresting a man on the Boston Common.  Glick was also charged with illegal wiretapping. In a landmark ruling, a Massachusetts court found Glick’s right to videotape to be protected by the First Amendment.  If Glick’s case allowing open recording established a new legal precedent in Massachusetts, then why is Espinosa-Rodrigue’s case, which rests on a secret recording, any different?

At an American Bar Association Government and Public Sector Lawyers Division teleconference, David Milton—Glick’s civil rights lawyer—said that the right to videotape police officers is not absolute and that recent case law has found that the right to record is subject to reasonable time, place and manner restrictions.

He added that police-videotaping cases are now part of a larger body of law recognizing the right to record matters of public interest, including public officials in the course of their duties.

According to Lyrissa Lidsky, an expert on the application of First Amendment principles to emerging media, secretly recording a police officer is less permissible and complicated than openly recording an officer for two reasons: Laws and regulations in these matters differ between federal and state governments and how wiretapping or eavesdropping is interpreted under these laws.

“The reason secret recording is more problematic than open recording is it [secret recording] is much more likely to [make it difficult to identify] the crime of eavesdropping or wiretapping,” Lidsky said. “By the same token, the arguments for a First Amendment right to secretly record are much weaker than those used for open recording.”

She added that police expectations of privacy should not differ from public or secret recording—in practicality there is no real expectation of privacy—if something occurs in a public place, it can be observed by witnesses, the police officer is not acting in his or her private capacity, and the information can easily be disseminated.

“A case [involving secretly recording a police officer in a public place such as a traffic stop] suggests that secret recording is a violation of the wiretapping statute — that even if there is a right to publicly record the police, there is no right to secretly record the police, so that is something to definitely be aware of,” Lidsky said.

Robert Ross, a Virginia state magistrate and former legal adviser to the Fairfax County Police Department, considers that police training and policy development will improve police performance and help manage the officer’s expectations of privacy.  “An officer who feels comfortable doing whatever the situation requires and knowing what the departmental guidelines are is going to feel a lot more at ease,” Ross added.

The positive contributions and usefulness that recordings add to criminal prosecutions by providing hard evidence of an offense, regardless of whether it is was secretly or publicly recorded, were also discussed at the program.  Experts agreed that the information provided by these recordings can be considered the most prized contribution technology has ever made to prosecuting criminal and civil rights cases.