You are just one record button away from committing a crime. No criminal intent is required on your part. In fact, you may be standing peacefully on your own property, sitting in your car, or just enjoying a cup of coffee in a public place. Regardless of your intent, you may find yourself arrested and all of your electronics, computers, data storage, and digital equipment confiscated by the police.
All for pushing the "record" button on your cell phone and pointing it at the police.
It makes no difference if you're simply witnessing a situation - the very act of recording police can land you in jail. Attempting to document a personal legal encounter, such as a routine traffic stop, is even worse. Using your cell phone to record police is not allowed under any circumstances. Although laws vary from state to state, law enforcement agencies across the country are actively working to criminalize citizens who record officers at work with cell phones and video cameras.
To be clear, we're not talking about spying on off-duty officers, undercover operations, or situations where an officer's life may be put in danger. We're talking about recording an officer in public or on your property during the course of their public duty and job performance. Recording the police as they enter your home or beat a suspect across the street is breaking the law and risking your own safety.
Many states prosecute violators based on laws originally intended to protect individual privacy from unlawful wire tapping. These laws are referred as "two-party consent laws." They require that both individuals in a phone call or private conversation are aware that their conversation is being recording. Police officers claim they have a right to privacy, thus it's unlawful to video record them performing their job in public places.
Yet other states claim there mere act of recording interferes with an officer's job as they protect and serve the community. This logic is used as a basis to instruct individuals to stop recording. If the individual fails to comply, then they have broken the law by refusing to obey.
The legality of such "no record" tactics by law enforcement agencies is currently being debated and applied differently in each state. Many see this as an unwillingness of law enforcement to allow these charges to be tested in the Supreme Court level. Meanwhile, "citizen videos" continue to grow in number with the currently flourishing pervasive cell phone and YouTube culture. Violators often are arrested, only to spend a few nights in jail before the charges are dropped.
There are many reasons why the average law-abiding citizen would want to record any encounter with law enforcement. Traditionally, judges and courts tend to give more judicial credence to an officer's testimony over that of a defendant. With a video recording of the event in question, it no longer becomes a case of witness reliability.
Individuals may wish to record their encounters with police in order to safeguard against potential police brutality or untruthfulness. Citizens may also wish to record police in public to insure the officers are performing their duty professionally and without animus. While many would not fault an officer for using deadly force against a violent suspect, those same people would take issue with an officer tasering an otherwise helpless and compliant suspect.
The last few years have seen a fundamental paradigm shift in the attitudes of both the public and law enforcement agencies alike. It's becoming increasingly common for police to view themselves as paramilitary agencies and citizens as "civilians." The very terminology is revealing. Citizens deserve rights and a presumption of innocence. Civilian is a military term implying the existence of enemy combatants who may be dealt with according to military rules of engagement.
Soldiers do not mirandize or presume potential enemies to be innocent. In fact, many states no longer require mirandizing of suspects. Even the Indiana Supreme Court recently ruled that police can enter a home without requiring a warrant. Anyone living there must allow any officers inside for any reason whatsoever. Can it be long before the distinction between "civilian" and "enemy" becomes a rhetorical question, answered only by one's willingness to obey without question or due process?
Quite a few people feel their individual right to privacy and civil liberties are no longer the primary concern of their government. With the extension of the Patriot Act and the continued blurring between military security and local law enforcement, such fears are not altogether unfounded. The increase of law enforcement powers and decrease of personal privacy is seen by many as a slippery slope towards a "police state" where officers may act capriciously without regard for individual rights.
The new powers and tactics of law enforcement agencies are likely to continue increasing. Citizens are at the mercy of an impersonal bureaucracy built upon wartime paranoia and cutting-edge technologies. While the goal of safety and security are laudable in the extreme, the potential also grows for individual officers or agencies to abuse their newly expanded powers.
Technology professionals will find themselves on the front lines as old laws collide with new technologies. Just as archaic wire-tapping laws are applied to cell phone and video recordings, other laws are mutated for circumstances undreamt of just a few years ago. Consider how First Amendment rights involving free speech have been put to the test by citizen journalists and bloggers. The internet has increasingly blurred the line between journalism and individual free speech.
As a member of the IT industry, you're on the edge of a cultural shockwave of consumer electronics. But knowing the technology is not enough. You must be aware of the social and legal consequences of how this technology is used. New technologies emerge daily that allow incredible intrusions into personal privacy and freedoms. The technology industry itself must make a concerted effort to insure not just the empowerment of a government to defend its citizens, but of the citizens to defend themselves against abuses of power.
The forefathers of the Constitution sought to preserve the right to bear arms as a counter-balance against the possibility of a tyrannical government. Today, such rights are as woefully outdated as laws regarding wire-tapping. We live in a new culture with new potentials and perils. The privacy and personal liberty of everyone is at stake.
It's no longer feasible to expect the government to be held in check by the states with their "armed and well-regulated militias." A new power must be found to preserve the people for the people and by the people. That power is you. As a tech-savvy professional, you are in a profound position to empower yourself and others with knowledge. But more importantly, it is you who has the power to watch the watchmen. Don't let this right slip from your grasp forever. It may be the only right you truly have left.