B. The Misuse of Wiretapping Statutes

Wiretapping statutes, often called eavesdropping or surveillance statutes, have erroneously been used in some states to prosecute those who record police officers, resulting in felony charges carrying potential prison sentences of over a decade. Essentially, the existing divide between states boils down to whether all parties or only one party to a conversation must consent to being recorded for it to be permitted by law. Worse yet, surreptitious recording of police misconduct by an uninvolved third party (like George Holliday's video of Rodney King) is most likely to be considered illegal, as no party has given prior consent. The federal government and the vast majority of states require only one party's consent, but twelve all-party states buck this trend. Nevertheless, ten of those twelve all-party states have an “expectation of privacy” provision to their laws which courts have ruled prevent them from applying to on-duty police officers. Massachusetts and Illinois stand alone in maintaining the illegality of recording on-duty officers by rejecting the “expectation of privacy” requirement.

At first blush, wiretapping statutes might seem irrelevant to recording police misconduct. The vast majority of this recording is being done on personal cell phones, which falls outside the traditional definition of wiretapping entirely. However, these statutes have, in some circumstances, been broadly interpreted to include any kind of recording, including those generated by a mobile phone. Video recording by itself rarely falls within the purview of these statutes, but because cell phones almost always make a corresponding audio recording, officers have distorted the law in an attempt to prevent surveillance in general. In states which require both parties to consent to recording, a police officer must therefore specifically permit you to record her actions. This circumstance is exceedingly unlikely if that officer is in the process of violating a civilian's civil rights.

Numerous cases concerning all-party states have now concluded in favor of the First Amendment right to record police. Christopher Drew, a sixty-year-old artist and teacher, and Tiawanda Moore, a twenty-year-old who was sexually assaulted by an officer during questioning, were both arrested in Illinois under an eavesdropping statute for recording on-duty police officers. They faced up to fifteen years on Class-1 felony charges. Drew used a digital recorder to capture his 2009 arrest for selling art without a permit. Moore used her Blackberry to record Internal Affairs investigators who allegedly discouraged her from filing a sexual assault complaint. Both were eventually acquitted, and a juror in the Moore trial called it, “a waste of time.” Simon Glik, an attorney in Massachusetts, recorded three officers in the Boston Commons as they arrested a young man. The officers asked if Glik's mobile phone was recording audio, and when he answered that it was, they arrested him for violating the state's wiretapping law. The charges were dismissed, and Glik eventually filed a lawsuit claiming his First Amendment rights were violated. The resulting settlement required the city to pay Glik $170,000 for his damages and legal fees.

The Federal Courts of Appeals have uniformly resolved this discrepancy in favor of First Amendment rights, holding that such applications of state wiretapping laws are unconstitutional. In ACLU v. Alvarez, the Seventh Circuit explained, “Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks.” The First Circuit used more forceful language in ruling on Glik's case: “[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”

Even law enforcement agencies have joined the chorus of voices denouncing the misapplication of wiretapping laws. The United States Department of Justice (“USDOJ”) has recently issued a statement recognizing the conclusions of the U.S. Courts of Appeals. With regard to Christopher Sharp v. Baltimore City Police Department, the USDOJ's Civil Rights Division sent a letter to the Baltimore Police Department's Office of Legal Affairs which stated:

[I]t is the United States' position that any resolution to Mr. Sharp's claims for injunctive relief should include policy and training requirements that are consistent with the important First, Fourth[,] and Fourteenth Amendment rights at stake when individuals record police officers in the public discharge of their duties .... Policies should affirmatively set forth the contours of individuals' First Amendment right to observe and record police officers engaged in the public discharge of their duties. Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.

Additionally, Police Chief Cathy Lanier of Washington, D.C.'s Metropolitan Police Department (MPD) recently issued a strikingly similar order which said, in part:

The Metropolitan Police Department (MPD) recognizes that members of the general public have a First Amendment right to video record, photograph, and/or audio record MPD members while MPD members are conducting official business or while acting in an official capacity in any public space, unless such recordings interfere with police activity.

The tide of legal scholarship is strongly in favor of First Amendment rights, and the few advocates in favor of using state wiretapping laws to curb surveillance of on-duty officers have essentially lost what was always a losing battle.