Several years ago, two officers working for the Winterville Police Department stopped a car for a traffic violation. Dijon Sharpe was a passenger in the vehicle. Sharpe had some prior negative interactions with police, so he began using his phone to livestream the stop on Facebook Live. One of the officers saw what Sharpe was doing and attempted to grab the phone, saying “We ain’t gonna do Facebook Live, because that’s an officer safety issue.” Sharpe held on to the phone and continued to livestream the stop. One of the officers told him that recording the stop was fine, but that livestreaming was not permissible and that “in the future,” if he attempted to livestream a stop, his phone would be taken from him. Sharpe subsequently sued, contending that the officers violated his First Amendment rights by trying to prevent him from livestreaming the stop. A federal district court dismissed his complaint. Sharpe appealed, and the Fourth Circuit recently issued a significant opinion in the case. Read on to find out what the court said. Continue reading
Tag Archives: recording
Shocking videos on sites like Faceboook Live may dominate the headlines (see examples here and here), but criminal attorneys know that the humble, old-fashioned audio recording still plays a large role in many cases. The state’s evidence at trial might include recordings of jail calls, witness interviews, 911 calls, suspect interrogations, wiretap intercepts, controlled buys, incriminating voicemails, and more. To aid in presenting that evidence to the jury (especially when the quality or volume of the recording is less than ideal), some prosecutors also prepare and introduce a written transcript of what was said on the tape.
That raises a tough question: Does the introduction of a transcript of an audio recording run afoul of the “best evidence” rule? There are cases that go both ways on this issue, and at first glance the rule seems to be something along the lines of “it is a violation, except when it isn’t, and sometimes maybe it doesn’t matter anyway.”
Let’s try to clean that up a little.
According to the New York Times, the governor of Missouri is now deploying the National Guard in an “effort[] to quell unrest” resulting from a white police officer’s shooting of a black teenager in the city of Ferguson. It seems to me that much of the “unrest” is a result of a lack of factual information about what took place between the officer and the teenager. Many community members believe that the teenager was shot without provocation. The officer hasn’t spoken publicly, to my knowledge, but appears to have told investigators that the teenager, who was very large, was attacking him. As far as I can tell, there are few credible witnesses, and the autopsy results don’t determine conclusively which version of events is correct. As a result, people can and do believe very different things about the incident, making violent disagreement possible.
If the officer had been equipped with a wearable camera, we would have much better information about what happened. Even a dash-mounted camera in the car would have helped. It might or might not have captured video of the interaction, but even an audio recording would be better than nothing.
The lack of a dash-mounted camera is a bit of a surprise. Many, if not most, police departments now have cameras in every patrol car. According to the police chief in Ferguson, “his department has 18 patrol cars. This spring, the department purchased two dashboard cameras and two wearable body cameras, but the equipment hasn’t been installed in vehicles because the department doesn’t have the money to cover that cost.” Hindsight is 20-20, but the costs of dealing with the “unrest” and the forthcoming lawsuit by the teenager’s family will make that cost seem like pocket change.
The incident has led to calls to equip all law enforcement officers with wearable cameras. The Editor in Chief of PoliceOne has a column here entitled Following Ferguson, a body camera on every officer? A columnist at Slate goes even further here, arguing that all public servants, including schoolteachers, should be equipped with recording devices.
There seems to be a strong argument for wider deployment of recording devices among law enforcement, at least when officers are engaged in adversarial interactions. And the reports that I have read suggest that departments that are using wearable cameras have had good experiences. But I’m interested in others’ perspectives. Would you support or oppose a policy that provided officers with wearable cameras and required their use? Would that sour the relationship between law enforcement and the public, or be too intrusive? I welcome responses by email, or of course in the comments section.
CNET is reporting that an Ohio man went to a movie theater wearing Google Glass. Halfway through Jack Ryan: Shadow Recruit, an FBI agent approached him, flashed a badge, took his Google Glass, and ordered him out of the theater. Several agents questioned the man about whether he was recording the film, which the man denied. Eventually, the agents connected the Google Glass to a laptop, downloaded the contents, and determined that the man had not recorded the film. He was released.
Wearable computing is here. It isn’t just Google Glass, which is still available only to a chosen few. Recon has a rival product. Every snowboarder seems to have a Go Pro camera on his or her helmet. Fitbit and other companies have wrist-based fitness tools. More and more police officers are wearing “badge cams.” (Some are also experimenting with Google Glass.) These new technologies raise a plethora of legal issues, as I noted in a previous post. This post will start by looking at the legal issues raised by wearable recording devices.
- Wiretapping and surveillance laws. Under North Carolina law, the consent of one party is sufficient to record a conversation. G.S. 15A-287. Therefore, a Glass wearer can record any conversation to which he or she is a party. But Glass might also be used to record a conversation to which the wearer is not a party – for example, a conversation taking place at the next table in a restaurant. Such surveillance likely would be a Class H felony. Id. Furthermore, in some states, all parties to a conversation must consent to recording. This raises the question of whether one implicitly consents to being recorded by engaging in a conversation with a Glass wearer. The Consumer Law and Policy Blog ponders the issue here, and Fox News interviews several experts here. Additional concerns might arise when Glass is used to record police activity, as some jurisdictions have special rules regarding recording the police. (I discussed some of those rules here.)
- Intellectual property laws. As the Ohio movie theater incident illustrates, the recording capability of Glass creates both intellectual property concerns and questions about how to enforce intellectual property rights. Should Glass be allowed in movie theaters, at art galleries, and at concerts? If Glass is allowed, but recording is prohibited, does the fact that a person is wearing Glass provide probable cause to believe that the person is recording? And if so, may officers simply confiscate and search a wearer’s Glass under the exigent circumstances exception to the warrant requirement?
- Driving laws. Using Glass to record one’s morning commute appears to be lawful, if uninteresting. Using other features of Glass while driving, however, might raise legal issues. Surfing the internet or reading email on Glass might constitute reckless driving under G.S. 20-140. Note that it would not violate North Carolina’s texting while driving law, G.S. 20-137.4A, because that statute refers specifically to using a “mobile telephone” to read emails and text messages. Some states have more specific laws, like California’s law against using a video display in front of the driver’s headrest; a driver who was ticketed under that statute recently had the charge dismissed when the judge found insufficient evidence that the device was in operation. [Update: An astute reader noted that North Carolina has a similar statute, G.S. 20-136.1.]
- Other offenses. Glass might facilitate a wide array of offenses. It could enable a criminal to “case” a target residence or business much more effectively. It could facilitate stalking. Using Glass to record one’s sexual activity (yes, there’s an app for that) might, in some instances, violate the obscenity – or even child pornography – laws.
- Police use of Glass. We know from Florida v. Jardines that a knock and talk becomes a Fourth Amendment search when an officer brings a drug dog along, because we do not expect, and do not implicitly invite, social visitors to bring such dogs. Do we expect social visitors to come to our homes wearing Glass? We certainly expect them to come carrying cell phones, which are recording devices, but perhaps Glass is different.
The Supreme Court has finally agreed to consider the issue of searching cell phones incident to arrest. Perhaps a decade from now, it will consider a Glass case. In the meantime, it will be interesting to see how the law unfolds.
There’s been quite a buzz lately about Google Glass, a “wearable computer” that looks like a pair of eyeglasses but that uses the lenses as transparent screens to display information to the user. (For example, the user might have CNN headlines constantly scrolling on the edge of the screen, or might have the glasses show a list of nearby coffee shops.) One feature of Glass that has received considerable attention is its ability to record still photos and video. Privacy advocates are concerned that it will usher in an era of ubiquitous recording, of constant surveillance. But isn’t that era already upon us?
Consider some of the technologies already in use by law enforcement:
- In-car cameras, currently installed in almost three quarters of state police and highway patrol vehicles, as noted here in The Police Chief
- Wearable cameras, discussed in this New York Times article (the article refers specifically to camera glasses made by Taser, such as the AXON Flex, shown here)
- Stationary surveillance cameras, which are present in virtually every major city as discussed here in the Wall Street Journal and here in the Newark Star-Ledger
- License plate readers, which have been deployed in Raleigh according to this WRAL article
- Surveillance drones, discussed in this CBS News piece
And don’t forget that most officers and civilians alike carry cell phones everywhere they go, and that most cell phones are capable of recording still photos and video.
The prevalence of recording devices raises a number of legal questions, from Fourth Amendment concerns to discovery issues. On the latter point, consider, for example, when footage from a stationary surveillance camera becomes part of the “file” that must be disclosed to the defense during discovery. Is it when an investigating officer saves a copy of the footage to his or her computer? When the officer views the footage, even if he or she does not save a copy? When footage within a certain time and distance from the time and scene of the crime is recorded, regardless of whether an officer ever views it?
For now, I’d like to abstract away from particular legal issues and ask for comments on a few more general questions:
- First, which recording technologies are showing up most often in court here in North Carolina?
- Second, are the recordings working more often in favor of the state or the defense?
- Third, where do you turn for help with the legal and practical issues presented by recording technology? Are there references or experts that, for example, law enforcement agencies turn to when deciding whether to implement wearable cameras? Are there resources that lawyers used when litigating the Fourth Amendment issues presented by these technologies?
I may have more to say about these issues in the future, but at this point I’m interested in hearing others’ views.
