OFF THE WIRE
Radley Balko
A guide to the technology for keeping government accountable..
This summer the issue of recording on-duty police officers has
received a great deal of media attention. Camera-wielding citizens
were arrested in Maryland, Illinois, and Massachusetts under
interpretations of state wiretapping laws, while others were
arrested in New Hampshire, Ohio, Oregon, Florida, and elsewhere
based on vaguer charges related to obstructing or interfering with
a police officer.
So far Massachusetts is the only state to explicitly uphold a
conviction for recording on-duty cops, and Illinois and
Massachusetts are the only states where it is clearly illegal. The
Illinois law has yet to be considered by the state's Supreme Court,
while the Massachusetts law has yet to be upheld by a federal
appeals court. Maryland Attorney General Douglas Gansler recently
issued an opinion concluding that arrests for recording cops are
based on a misreading of the state's wiretapping statute, but that
opinion isn't binding on local prosecutors.
In the remaining 47 states, the law is clearer: It is generally
legal to record the police, as long as you don't physically
interfere with them. You may be unfairly harassed, questioned, or
even arrested, but it's unlikely you will be charged, much less
convicted. (These are general observations and should not be
treated as legal advice.)
One reason this issue has heated up recently is that the
democratization of technology has made it easier than ever for just
about anyone to pull out a camera and quickly document an encounter
with police. So what's the best way to record cops? Here is a quick
rundown of the technology that's out there.
Cameras without wireless networking capabilities are the least
attractive option. If they are destroyed or confiscated, you have
probably lost the damning video you just recorded, including the
video documenting how your camera was confiscated or destroyed. But
provided you can hold on to your camera, digital video recorders
today are inexpensive, small, and wonderfully practical. The
best-known everyday, easy-to-use brand right now is probably the
Flip Video line, which start at $149. Even the
cheapest
Flips
fit in your pocket, power up in about three seconds, and feature
one-button recording. They are also easy to use. They include a
built-in USB port and instant formatting for sites such as LiveLeak and YouTube.
Kodak has a pocket video camera for $100, and Amazon list a
couple
dozen
different flash-memory cameras for under $50. Still too expensive?
For $20,
this
camera
sold at USBGeek is shorter than a stick of gum and shoots 640×480
video at 30 frames per second. It has a memory slot to hold up to
32GB of memory and a two-hour battery life. Or try
this
keychain
camera.
It's tiny, has the advantage of not looking much like a camera,
shoots 720x480 video at 30 frames per second, and sells for all of
$12 (with free shipping) at Meritline.com.
Last year's demonstrations in Iran and the 2009 police shooting
of Oscar Grant on a subway platfom in Oakland, California were very
public incidents, with dozens of cell phones taking photos and
video as they happened. Authorities could not possibly have
confiscated every phone camera (although in both cases they tried).
But in other cases, police confiscate cameras, and when they are
returned the potentially incriminating video or photos are gone.
But technology is helping there too.
If you find your files or videos have been deleted once your
camera has been returned, your best option is to look into recovery
software, which in many cases can bring the deleted files back.
Don't use the phone or camera until you've tried the software.
The better option, though, is to use a camera with networking
capabilities. We're increasingly seeing spy movies-come-to-life
cameras like
this Bluetooth device from Looxcie, which you wear over your
ear and lets you instantly email video, but the same technology is
also standard now in most smart phones. The ability to store audio
or video off site—to email it to friends (or yourself), or to
upload it to social networking sites—is becoming more and more
accessible. And it's a pretty powerful check on government, as
shown by the Iran demonstrations, the Grant shooting, and the
alleged police abuses shown in hundreds of videos uploaded to video
sharing sites.
Qik and
UStream, two services available for both the iPhone and Android
phones, allow instant online video streaming and archiving. Once
you stop recording, the video is instantly saved online. Both
services also allow you to send out a mass email or notice to your
Twitter followers when you have posted a new video from your phone.
Not only will your video of police misconduct be preserved, but so
will the video of the police officer illegally confiscating your
phone (assuming you continue recording until that point).
Neither Qik nor UStream market themselves for this purpose, and
it probably would not make good business sense for them to do so,
given the risk of angering law enforcement agencies and attracting
attention from regulators. But it's hard to overstate the power of
streaming and off-site archiving. Prior to this technology,
prosecutors and the courts nearly always deferred to the police
narrative; now that narrative has to be consistent with
independently recorded evidence. And as examples of police reports
contradicted by video become increasingly common, a couple of
things are likely to happen: Prosecutors and courts will be less
inclined to uncritically accept police testimony, even in cases
where there is no video, and bad cops will be deterred by the
knowledge that their misconduct is apt to be recorded.
But there is still room for improvement. With both Qik and
UStream, you can delete your uploaded videos from your phone, which
means that if your phone is confiscated before you can turn it off
(or if you keep your phone unlocked), whoever took it can get into
your account and erase your evidence. One not terribly reliable way
around this problem would be to encourage any of your friends or
Twitter followers who happen to be online at the time to download
your video the moment they get notice of it. But it would be far
better if you had the option to make your videos deletable only
once you've logged in from a computer. Another improvement would be
the ability to "black out" the phone while it's taking video, so it
isn't so obvious that you're recording.
UStream and Qik are not likely to add either function, since
both are beneficial only for people who want to make surreptitious
recordings. But how about an ACLU or NAACP app designed
specifically for recording police? The NAACP's "All
Alert"
project encourages people to report incidents of police abuse
through a toll-free phone number, text messages, or Twitter. But
the process for registering a complaint is pretty cumbersome, and
the program doesn't allow instant streaming and archiving.
Scott Morgan of Flex Your
Rights, which educates people about their rights during police
encounters, says his organization has been exploring the
possibility of offering such a service. "I think it's a great
idea," Morgan says. "We've talked to a couple developers about it.
I think the problem for a small group like us is getting server
space for videos and working out the networking issues." Globally,
it would make great sense for an organization like Amnesty
International or Human Rights Watch to develop a similar
easy-to-use application, allowing people all over the world to
emulate the instant documentation we saw during the protests in
Iran.
The dizzying advancements in personal technology during the last
decade have slipped a powerful government accountability tool into
our pockets. But it happened mostly by accident. The technology was
intended for other uses, and it still needs some fine tuning to
work better as a protection against abuses of state power. It's
hard to think of a more worthy project for a civil liberties
group.
Radley Balko is a
senior editor at Reason magazine.
