Bad Footage:
Surveillance Laws, Police
Misconduct, and
the Internet
DUSTIN F. ROBINSON*
TABLE OF CONTENTS
INTRODUCTION .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 1400
I. ADJUSTING
THE FOCUS: THE GENESIS OF SURVEILLANCE LAW . . . . . . 1402
II. A LAW IS WORTH
A THOUSAND INTERPRETATIONS: INDIVIDUAL
STATE APPROACHES
TO SURVEILLANCE LAWS . . . . . . . . . . . . . . . . . 1404
A. WASHINGTON’S
PRACTICALITY . . . . . . . . . . . . . . . . . . . . . . . . 1405
B. MASSACHUSETTS’S
LITERALISM . . . . . . . . . . . . . . . . . . . . . . . . 1408
C. ILLINOIS’S
CONVERSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1410
III. READY FOR
THE CLOSE-UP: POLICE ACCOUNTABILITY THROUGH
TECHNOLOGICAL ADVANCES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1413
A. INNOVATIONS
IN RECORDING TECHNOLOGY . . . . . . . . . . . . . . . . 1413
B. PRIVILEGING
VIDEO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1414
C. SOUSVEILLANCE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1417
IV. THROUGH A COMPUTER
SCREEN, DARKLY: RECORDINGS AND THE
INTERNET . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1420
A. PERVASIVE
ANONYMITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1421
B. POTENTIAL
FOR HARM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1422
C. PRIVACY IN
THE INTERNET AGE . . . . . . . . . . . . . . . . . . . . . . . . 1428
V. PROCESSING
THE NEGATIVES: HOW TO RESTORE THE USE AND AVOID
THE ABUSE OF RECORDINGS
OF POLICE MISCONDUCT . . . . . . . . . . . . 1430
CONCLUSION . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 1434
* Georgetown
University Law Center, J.D. expected 2012; New York University, B.A. 2009. ©
2012, Dustin F.
Robinson. Thanks to the following: Jayme Holcomb of the Drug Enforcement
Administration
for alerting me to these issues; Professor Greg Klass, Dean Robin West, and the
students of
Georgetown University Law Center’s Legal Scholarship Seminar for contributing
to the
shaping of the
arguments; the editorial staff of The
Georgetown Law Journal for
assisting in refining
the text; and
my father for teaching me at an early age always to question authority.
1399
INTRODUCTION
On the night of
March 3, 1991, Rodney King was savagely beaten by Los
Angeles police
officers.1 The ensuing trial of four of those officers charged with
police
brutality resulted in three acquittals and one nonverdict; the City of Los
Angeles was
subsequently engulfed in riots that lasted for days.2 Those same
four officers
were eventually charged by the federal government with civil
rights
violations, and two were found guilty.3 A national dialogue emerged
regarding the
presence and frequency of police brutality, racism in law enforcement,
and general
concerns about the power invested in those meant to protect
the citizenry.4
All these events came to pass because someone just happened to
videotape the
beating of Rodney King.
George Holliday
gave his footage of the beating to KTLA, a Los Angeles
television
station, and the eight-minute tape went public; the airing of the tape
likely
influenced the decision to prosecute the officers.5 Had Holliday not
woken to sirens
outside his apartment that evening, and had he not decided to
take his Sony
Handycam out onto his terrace, conceivably, Rodney King would
remain an
unknown man today, a nameless victim of police misconduct. Had
Holliday not
made that tape, investigations and inquiries into local law enforcement
practices would
not have become a politically salient and viable talking
point. George
Holliday’s video changed public perceptions of the police force
and opened
national discussions on the interaction of law enforcement and race.
In short, his
video contributed to justice. Ironically, in recording the beating of
Rodney King,
George Holliday may have committed a crime.
Surveillance may naturally connote a practice which the
state is more likely
to engage in.
Generally, however, surveillance laws do not distinguish between
state and
non-state actors.6 Recordings made by any person potentially implicate
surveillance
concerns. Twelve states require that all parties involved consent
to a recording.7
In these states, barring some exceptions (probable cause
and the like),
police cannot record an individual without his consent. According
to the text of
the statutes in these states, the same goes for the citizen: he cannot
record another
person, including a police officer, without the person’s
consent.8Although
some state courts have interpreted the statute to avoid this
result, others
have not.9
1. Flashback: Rodney King and the LA Riots, BBC NEWS (July 10, 2002, 16:59 GMT),
http://
news.bbc.co.uk/2/hi/americas/2119943.stm.
2. Id.
3. Id.
4. Id.
5. Michael
Goldstein, The Other Beating: Fifteen
Years After His Video of Rodney King Reached the
World, George
Holliday Looks Back on How that Night Has Hurt Him, L.A. TIMES, Feb. 19, 2006,
http://www.latimes.com/la-tm-holidayfeb19,0,581354.story.
6. See infra Part I.
7. See id.
8. See id.
9. See infra Part II.
1400 THE GEORGETOWN
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In recent
years, many individuals have been charged with violations of
surveillance
statutes for doing exactly what George Holliday did—they recorded
police officers
engaging in what they believed was unjust, illegal, or
brutal
activity.10 In each instance, they thought that they were either performing
a civic service
or protecting themselves and their rights. And yet, they were
ultimately
charged as criminals.11 While not garnering the attention that Holliday’s
video did,
these prosecutions should have prompted outrage from those
who care about
civil liberties. The perceived injustice of the criminal charges
against the
individuals who recorded police officers’ misconduct has found a
willing
audience on the Internet.12 Individuals are no longer confined to the
limits of
Holliday’s Handycam and the steps necessary to get the mainstream
media to broadcast
it to the public via television stations; they can record audio
and video
footage and almost instantaneously reach millions of people through
digital file
sharing.13 The Internet has allowed widespread publication of the
plights of
these individuals and provided a weapon of retaliation against the
subjects of a
recording. Had the Internet been widely available in 1991, the
police officers
who beat Rodney King may have been subjected to a “beating”
of their own in
the form of cyber—and potentially real—harassment. But while
the officers
deserved their eventual federal convictions, would they necessarily
deserve the
unmitigated wrath of aware citizens? More importantly, what of
police
encounters where the situation is not as black and white as the video may
portray?
This Note will
consider the seeming illogicality of criminalizing the recording
of those who
should be held to the utmost of behavioral standards and
should be
particularly conscious of their image in the public eye: the police.
But, it will also
address the flip side of the coin: the havoc that the recordings, if
placed on the
Internet, can wreak on individual lives. After starting with a
general survey
of various purposes and permutations of the surveillance laws
across the
states, this Note will then consider judicial approaches to and
interpretations
of these laws. The ramifications of technological advances in
recording
devices and an exploration of the concept of citizen surveillance will
follow.
Finally, this Note will contemplate the arguments for the prosecution of
citizens who
record police officers, treating police officers just like every other
citizen, in
light of the harm the recordings can potentially cause in the Internet
Age.
10. See id.
11. See id.
12. See infra section IV.B.
13. See infra section III.A.
2012] SURVEILLANCE
& POLICE MISCONDUCT 1401
I. ADJUSTING
THE FOCUS: THE GENESIS OF SURVEILLANCE LAW
Electronic-surveillance
statutes14 stand as a reminder of the valuation of
privacy
interests: there are boundaries for acceptable recording practices both
by the public
and by law enforcement. While landmark Supreme Court cases
elucidate the
roots of surveillance law and the fundamental concepts of privacy,
15 individual
state statutes reflect the differing approaches to these privacy
concerns.16 A
few states have opted to tilt the balance of surveillance law
toward
protection of privacy by requiring the consent of all parties to a
conversation
before recording it.17 Among those states, however, both legislative
and judicial
nuances have shaped the statutes so that each state essentially
has a variant
of surveillance law all its own. This Part will explore these
foundational
developments and distinctions to lay the groundwork for a more
in-depth
consideration of surveillance law in those states that supposedly have
the utmost
concern for privacy.
Modern
understandings of surveillance law resulted from the seminal Supreme
Court case of United States v. Katz.18 Katz
involved FBI agents attaching
a listening
device to the outside of a telephone booth and subsequently surveilling
Katz’s phone
conversation.19 The Court disagreed with the government,
which argued
that Katz could not possibly have had any kind of privacy right in
a public
telephone booth, and concluded that an improper search had occurred
in violation of
the Constitution.20 More importantly, Justice Harlan articulated
the “reasonable
expectation of privacy” test in his concurring opinion: a search
under the
Fourth Amendment occurs when (1) an individual possesses an actual
expectation of
privacy and (2) society would consider that expectation reasonable.
21 The second
prong is considered the “objective” prong of the test
because,
theoretically, a court can analyze whether society would objectively
view an
individual’s expectation of privacy as reasonable. For example, the
Court has held
that society would not consider reasonable an expectation of
privacy in
spaces ranging from “open fields” to garbage cans.22 The requirement
that the
expectation of privacy be reasonable, then, limits the extent of
14. Electronic
surveillance statutes are relatively interchangeably known as “surveillance
statutes,”
“wiretapping
statutes,” “eavesdropping statutes,” and “privacy statutes.” This Note uses
each of these
designations at
various points, but the consistent connotation of them as a surveillance
statute is meant
to designate
those statutes that criminalize the electronic recording of law enforcement
officials who
interacted with
the recording party.
15. See infra notes 18–21, 24–26, and accompanying text.
16. See infra note 30 and accompanying text.
17. Id.
18. 389 U.S.
347 (1967).
19. Id. at
348.
20. Id. at
352, 359.
21. Id. at
361 (Harlan, J., concurring).
22. California
v. Greenwood, 486 U.S. 35, 41 (1988) (holding that one cannot hold a reasonable
expectation of
privacy for items placed in a garbage can); Oliver v. United States, 466 U.S.
170, 177
(1984) (holding
that even with regard to private property, one cannot hold a reasonable
expectation of
privacy in a
space that is sufficiently accessible to the public).
1402 THE GEORGETOWN
LAW JOURNAL [Vol. 100:1399
privacy a
person is afforded. As demanded by the Constitution, protection of a
person’s
privacy interests may not drop any lower than that in the Fourth
Amendment
calculus. States are bound by this privacy minimum in determining
how much
authority to grant law enforcement. However, they are free to grant
greater privacy
protections.
Because of the
covert nature of surveillance, wiretapping, and eavesdropping,
legislatures
and courts have confronted the question of whether and when a
person can
reasonably expect his conversation to remain private. The federal
wiretapping
statute stipulates that it shall not be unlawful for a person, acting
under color of
law or not, “to intercept a wire, oral, or electronic communication,
where such a
person is a party to the communication or one of the parties
to the
communication has given prior consent to such interception.”23 This
notion of a
consent-based exception is rooted in United
States v. White.24 At
issue in White was the law enforcement agents’ use of a radio transmitter that a
government
informant carried to transmit the oral communication between
himself and the
defendant.25 The Court held that a search did not occur because
the defendant
could not have a reasonable expectation of privacy in matters that
he publicly
aired to other persons.26 A majority of states have integrated similar
one-party
consent exceptions into their surveillance statutes.27 In effect, then,
the person
recording a conversation is the person who consents, and the activity
remains
perfectly legal regardless of whether the recorded individual knows of
the recording.
In contrast,
eleven states require all-party consent for a legal electronic
recording. For
example, Massachusetts law defines an “interception” as a
communication
secretly recorded without “prior authority by all parties to such
communication,”28
while Illinois law states that a person is guilty of eavesdropping
if, using a
device, he knowingly and intentionally hears or records a
conversation
without “the consent of all parties to such conversation or electronic
communication.”29
The other states—California, Florida, Maryland, Michigan,
Montana, New
Hampshire, Pennsylvania, and Washington—have similar
provisions
requiring “all-party” consent, as does Oregon for in-person conversa-
23. 18 U.S.C. §
2511(2)(c) (2006) (exempting one from suit if consent is obtained while acting
under color of
law); id. § 2511(2)(d) (exempting one from suit if
consent is obtained while not acting
under color of
law and no
criminal or tortious act is intended by the interception).
24. 401 U.S.
745 (1971). Though White involved no video surveillance, many modern
surveillance
statutes have
developed a distinction between video and audio recording: several states allow
for the
former to be
made without legal bar, but the latter, including video recordings with an
audio
component, can
be legally problematic. See, e.g., infra
note 32.
25. White,
401 U.S. at 746–47.
26. Id. at
749–50.
27. See, e.g., VA. CODE ANN. § 19.2-62(B)(2) (West 2011) (“It shall not be a
criminal offense . . .
for a person to
intercept a . . . communication, where such person is a party to the
communication or
one of the
parties to the communication has given prior consent to such interception.”).
28. MASS. GEN.
LAWS ANN. ch. 272, § 99(a)(4) (West 2011).
29. 720 ILL. COMP.
STAT. 5 / 14-2(a)(1)(A) (2011).
2012] SURVEILLANCE
& POLICE MISCONDUCT 1403
tions (while
allowing one-party consent for telecommunications).30 Several of
them—for
instance, Massachusetts, California, and Illinois—are popularly conceived
of as “liberal”
states, where legislatures would more likely go to great
lengths to
protect civil liberties and privacy. These state legislatures determined
that federal constitutional
and statutory provisions did not go far enough to
protect privacy
interests.31 In other words, a party’s expectation that a conversation
would remain
private need not have been objectively approved of by
society but
merely subjectively manifested. So long as a person can evidence an
expectation of
privacy on his part, it is worthy of protection.
The all-party
consent requirement may be good, perhaps even valuable: it
aims to elevate
privacy to a premium and prevent corruption of everyday
conversation.
After all, a person will necessarily feel more secure in his daily
communications
if he knows that his words cannot be captured without his
consent; the
free flow of information and sociability are concordantly promoted.
Therefore, the
subversion of the purposes of all-party consent is all the more
perplexing and
frustrating. Allowing surveillance statutes to criminalize the
recording of
police officers engaged in official conduct contradicts the very
point of
privacy concerns.
II. A LAW ISWORTH
A THOUSAND INTERPRETATIONS: INDIVIDUAL STATE
APPROACHES TO SURVEILLANCE
LAWS
The all-party
consent states demonstrate a spectrum of approaches to surveillance
laws. The
statutory provisions and corresponding judicial interpretations
by which these
states have either allowed or barred the recording of law
enforcement
activity are the threshold concern in considering what happens
when these
recordings end up on the Internet. Accordingly, a survey of representative
applications of
all-party-consent laws is necessary for a discussion of the
importance of
the ability to record the police and the counteracting fear of abuse
of such
recordings.
30. CAL. PENAL CODE
§ 632 (West 2011); FLA. STAT. ANN. § 934.02 (West 2011); MD. CODE ANN.,
CTS. & JUD.
PROC. § 10-402 (LexisNexis 2011); MICH. COMP. LAWS § 750.539C (2011); MONT. CODE
ANN. § 45-8-213
(2011); N.H. REV. STAT. ANN. § 570-A:2 (2011); OR. REV. STAT. § 165.540 (2011);
18
PA. CONS. STAT.
ANN. § 5704 (West 2011); WASH. REV. CODE ANN. § 9.73.030 (West 2011).
31. For example,
the New Hampshire Supreme Court acknowledged that the New Hampshire
wiretapping
statute “protects the individual’s right to privacy to a greater degree than
the United States
Constitution or
the federal [wiretapping] statute.” State v. Ayres, 383 A.2d 87, 88 (N.H.
1978),
superseded by
statute in part, N.H. REV. STAT.
ANN. § 570-A:2 II(d), as recognized
in State v. Kilgus,
519 A.2d 231,
240 (N.H. 1986). Similarly, a Michigan court noted the distinction between
Fourth
Amendment
jurisprudence and that state’s wiretapping statute. It concluded that
[t]he concept
of a reasonable expectation of privacy . . . is not applicable here, where the
statutes at
issue focus on conduct between private individuals . . . . [W]hether a
conversation
was private
should depend on whether the conversation was intended for or restricted to the
use of a
particular person or group or class of persons . . . .
People v.
Stone, 593 N.W.2d 680, 683 (Mich. Ct. App. 1999) (citations omitted) (internal
quotation
marks omitted).
1404 THE GEORGETOWN
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Each of the
all-party consent statutes has been shaped through the nuances of
prosecutorial
discretion and judicial interpretation. Consequently, each statute
has its own set
of fine points that render it unique. California has dabbled in
applying the
statute only to audio recordings,32 New Hampshire has emphasized
that an
individual must have a “willful” state of mind when recording to be
criminally
liable,33 and an Oregon court has declared that its statute does not
require literal
consent but rather mere awareness of the recording.34
The
eavesdropping statutes have found a natural application in interactions
between private
persons,35 but the application of the statutes to a person, like
Holliday, who
records police officers in the course of their official duties
without their
consent, varies from state to state. Some all-party-consent states,
like
Washington, have specifically foresworn the application of their statutes in
that
circumstance.36 Others, like Massachusetts, apply the statute regardless of
the intent of
the recorder or the parties to the conversation.37 Illinois demonstrates
the tension
between the two modes of application: the Illinois courts
embraced the
first, but the legislature embraced the second.38 By looking to the
following
individual state applications and interpretations of the all-partyconsent
requirement,
differing approaches to legislative intent and countervailing
factors are
readily seen.
A. WASHINGTON’S
PRACTICALITY
Washington’s
approach to all-party consent in the context of recording police
officers stands
at one end of the spectrum: the all-party-consent requirement
does not apply
when a police encounter is recorded.39 The statute states that it
shall be
unlawful to intercept or record any private communication without first
obtaining the
consent of all the participants in the communication.40 As a
Washington
court first stressed in State v.
Flora, the crucial element in
this
formulation is
that the communication in question actually was “private.”41
32. See People
v. Drennan, 101 Cal. Rptr. 2d 584, 586–89 (Cal. Ct. App. 2000) (holding that
the
California
statute does not apply to photographs or silent recordings). But see People v. McCallister,
No. E029538,
2002 WL 1724003, at * 8–9 (Cal. Ct. App. July 25, 2002) (disagreeing with the
holding
in Drennan and instead determining that the California statute encompasses
both audio and video
recordings).
33. See Fischer
v. Hooper, 732 A.2d 396, 399 (N.H. 1999).
34. See State
v. Haase, 895 P.2d 813, 815 (Or. Ct. App. 1995).
35. For a
particularly sensational example, recall the Linda Tripp–Monica Lewinsky
interactions.
Tripp violated
the Maryland statute by recording a phone conversation with Lewinsky without
her
consent, and
she was indicted. The prosecutors later dismissed the charges in light of the
difficulties
that would be
encountered in procuring Lewinsky’s testimony. See Robert
L. Jackson, No Criminal
Prosecution in
Md. Case Against Linda Tripp,
L.A. TIMES, May 25, 2000, http://articles.latimes.com/2000/
may/25/news/mn-33924.
36. See infra section II.A.
37. See infra section II.B.
38. See infra section II.C.
39. See WASH.
REV. CODE ANN. § 9.73.030 (West 2011).
40. Id.
41. 845 P.2d
1355, 1356 (Wash. Ct. App. 1992).
2012] SURVEILLANCE
& POLICE MISCONDUCT 1405
After a
troubling prior encounter with law enforcement, James Flora was
concerned with
protecting his rights.42 Police were summoned after Flora was
seen standing
outside his neighbor’s house and taking pictures in the middle of
the street; the
same officers who were involved in his arrest the year before
arrived.43 When
Flora went inside to get official documents, he slipped a small
tape recorder
into the pile to record the officers should they either assault him or
use racial
slurs against him again.44 The police officers discovered the recorder
and arrested
Flora for violatingWashington’s surveillance statute.45
Although the
irony that race played a central role in this encounter as it had in
the Rodney King
incident is notable, the true importance of State v. Flora lies
in
the commonsense
approach that the Washington Court of Appeals took in
construing the
statute. Although the term private is not defined in the statute, the
Washington
courts have construed it to mean that the communication in question
was “intended
only for the persons involved” or conducted “secretly,” “not
open or in
public.”46 After all, the statute is referred to as the “Privacy Act.”47
Quoting the
Washington Supreme Court’s holding that the statute “reflects a
desire to protect individuals from the disclosure
of any secret illegally uncovered
by law
enforcement,”48 the court
made clear that the surveillance statute
was concerned
with protecting citizens from violations of privacy by police, not
the other way
around. The court’s description of the government’s argument is
telling: “The
State now urges us to distort the rationale of those cases [involving
invasions of
personal privacy] to support the proposition that police officers
possess a
personal privacy interest in statements they make as public officers
effectuating an
arrest.”49 The court refused to do so because the police officers
“could not
reasonably have considered their words private.”50 The succinctness
of the court’s
reasoning highlights the obviousness of the result.
This
common-sense approach was reaffirmed by the Ninth Circuit’s analysis
of the
Washington statute in Johnson v.
Hawe.51 Without any justification
42. Id. at
1355. James Flora had been arrested for obstruction of justice: when police
arrived at his
house to arrest
his daughters—who had thrown mud at the car of a neighbor for calling them
“nigger
bitches”—for
malicious mischief, he sent his younger daughter, who became upset at the sight
of the
police, inside
the house. Id. Supposedly, during his arrest, Flora was
handled roughly and was himself
referred to as
“nigger” by the arresting officers. Id.
While the obstruction of justice charges were
dropped, the
neighbor in question obtained a restraining order against Flora and his family.
Id.
43. Id.
44. Id. at
1356.
45. Id.
46. Id. at
1357 (citing State v. Slemmer, 738 P.2d 281 (Wash. Ct. App. 1987)).
47. Id. (noting
that a definition was “consistent with the Legislature’s purpose in enacting
the
privacy act”).
48. Id. (quoting
State v. Fjermestad, 791 P.2d 897, 902 (Wash. 1990)).
49. Id. (emphasis
added).
50. Id. at
1358. In fact, the police officers had testified at trial that they did not
consider the
conversation
private. Id. at 1358 n.1.
51. 388 F.3d
676 (9th Cir. 2004). Anthony Johnson, for whatever reason, turned a video
camera from
his
skateboarding friends to a nearby police officer sitting in a patrol car. Id. at
679–80. The officer was
looking for a
missing person and in no way was actively engaged with either Johnson or his
friends;
1406 THE GEORGETOWN
LAW JOURNAL [Vol. 100:1399
similar to
Flora’s, and despite a police officer’s warnings against nonconsensual
recording,
Anthony Johnson persisted in recording the officer sitting in his
patrol car
until Johnson was arrested.52 Though the criminal charges were
eventually
dropped, Johnson filed a § 1983 action in federal court: he alleged
that the
officer arrested him without probable cause in violation of the Fourth
Amendment.53 The
officer contended that he had a privacy interest in communications
over the police
radio and that this interest provided the probable cause to
arrest Johnson
for violating the privacy statute.54 The Ninth Circuit, relying
heavily on Flora,
held that a privacy interest in police radio communications
could not have existed.55
More
importantly, because a § 1983 action involves questions of qualified
immunity, it
was necessary to ascertain whether Johnson’s right was clearly
established and
whether the police officer clearly did not have probable cause
when he
arrested Johnson.56 A crucial distinction between Flora and Johnson
was that the
former attempted to record police officers engaged in what was
feared to be an
illegitimate and unconscionable arrest; the latter apparently was
recording a
police officer for the sheer thrill of it. Nevertheless, the Ninth
Circuit
concluded that Flora and its progeny made two things clear: (1)
public
officers
engaged in official functions do not enjoy a privacy interest in communications
made in public;
and (2) the Privacy Act cannot be transformed into a
sword usable by
public officers engaged in their official functions.57 That
Johnson was
making his recording without any provocation was irrelevant: a
law enforcement
officer should have known that he cannot arrest someone for
recording him
engaged in the course of his official duties.58
Accordingly,
Washington’s all-party consent statute cannot be used to prosecute
citizens who
record police officers in the course of their official duties.59
In taking a
common-sense approach to interpreting the statute, the Washington
court concluded
that the legislature intended to protect the citizens from invasions
of privacy,
particularly by law enforcement, and that law enforcement
officers who
are acting in their official capacity are not a class with which the
rather, he was
communicating with other officers at the police station via cellphone and his
police radio
was in
operation. Id.
52. Id. at
680.
53. Id. at
681.
54. Id. at
681–82. It is unclear why the officer did not argue a privacy interest in his
cellphone
conversation;
he was communicating with the police station at the time, but a better argument
could be
made for a
privacy interest in one’s cellphone communications as opposed to those
transmitted by
police radio.
55. Id. at
683–85.
56. See id. at 685.
57. Id.
58. Id.
59. Of course,
a police officer could engage in conversation, while on the job, under such
circumstances
that privacy
concerns were present (for instance, discussions of administrative concerns
such as
injuries
sustained on the job and their impact on job performance). However, these
scenarios would be
rare and
resulting prosecutions would be far less objectionable.
2012] SURVEILLANCE
& POLICE MISCONDUCT 1407
statute was
concerned with protecting. Therefore, the statute cannot be interpreted
in such a way
that public officers who wish to shield their operations
from public
view can wield it as a sword. Simply put, this makes sense.
B. MASSACHUSETTS’S
LITERALISM
Massachusetts,
on the other hand, may be the most aggressive state in
applying an
all-party consent statutory requirement. The evolution of its case
law involving
recording of the police reflects that harsh stance. The first
landmark case
in this field, Commonwealth
v. Hyde, made clear that the
Massachusetts
courts would not care what good a secretive recording could be
used for: the
statute would not allow it.60 The circumstances under which
Michael Hyde
was pulled over remain unclear.61 The police contended that the
stop was due to
noisy exhaust and an unlit registration plate light, but Hyde
contended that
it was because of his long hair.62 Regardless of the motivations
for the stop,
Hyde turned on a pocket tape recorder at the beginning of the
interaction;
six days later he took this tape to the police station to file a formal
complaint
against the police officers for “unfair treatment.”63 While the officers
were subjected
to a formal internal review,64 that tape provided a basis for
launching a
criminal prosecution of Hyde. A clerk–magistrate initially refused
to issue the
complaint sought, but a state district court judge overruled the
determination.65
Hyde ultimately defended himself on the grounds that the
officers could
not have possessed any privacy interest while engaged in the
course of their
official duties, and therefore, he could not have caused the harm
that the
state’s wiretapping statute sought to avoid.66 However, the court agreed
with the
government that the statute, based on its plain language, can only be
read as making any secret
recording illegal.67
The Hyde court’s
willingness to parse facts and text in the strictest manner
possible is
impressive, indeed. The dissent loudly evoked the Rodney King
incident and
the value of George Holliday’s action as the very reason for
60. Commonwealth v. Hyde, 750 N.E.2d 963, 965–66 (Mass. 2001); see id. at 974–75 (Marshall,
C.J.,
dissenting) (citing State v. Flora, 845 P.2d 1355 (Wash. Ct. App. 1992)). At
that time, only one
other reported
judicial opinion involved the application of a wiretapping statute to a citizen
recording
police
officers. Id.
61. For a
greater explanation of the Hyde incident as well as a thorough analysis of
Massachusetts
wiretapping
law, see Lisa A. Skehill, Note, Cloaking
Police Misconduct in Privacy: Why the Massachusetts
Anti-Wiretapping
Statute Should Allow for the Surreptitious Recording of Police Officers, 42
SUFFOLK U. L. REV.
981 (2009).
62. Hyde,
750 N.E.2d at 964 (majority opinion).
63. Id. at
965. Presumably, Hyde took issue with the confrontational nature of the
interaction where
the officers
forced him and his passenger to get out of the car and asked whether he had any
“blow” in
the car. Id. at
964. Hyde seemed to feel that he was unfairly treated because of his appearance
and his
car. Id.
64. The
officers were found not to have engaged in any misconduct. Id. at
965.
65. Id.
66. Id. at
965–66.
67. Id. at
966.
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refusing to
allow such prosecutions to proceed.68 The majority opinion contended
that the
dissent’s use of the Rodney King incident “interjects emotional
rhetoric into
what should be a straightforward matter of statutory interpretation,”
and went on to
distinguish, apparently coldly, California’s statute—
applying only
to “‘confidential communication’”—from Massachusetts’ wiretapping
statute which
was purposefully constructed without reference to “privacy
rights.”69 As
the dissent points out, however, the logic of speaking in terms of
absolute
privacy, while ignoring that privacy rights extend only to certain
circumstances
in which a reasonable expectation of privacy or a comparable
mindset exists,
contradicts what the legislature intended in enacting the statute.
70 Speaking to
the majority on its own terms—terms focusing on statutory
construction
rather than practical considerations—the dissent noted that “[w]here
the legislative
intent is explicit, it violates a fundamental rule of statutory
construction to
reach a result that is plainly contrary to that objective” of
protecting the
privacy of citizens.71 In the dissent’s mind, the majority was
construing a
legislative intent that would have had to contemplate police
officers
“conceal[ing] possible misconduct behind a cloak of privacy.”72 The
effect of the Hyde decision
could be the condoning of such concealment.
A more recent
case in Massachusetts may evidence a backing off from the
state’s harsh
interpretation of the statute. To a far greater degree than Hyde,
Simon Glik
emulated Holliday when he took out his cellphone and used its
recording
feature to capture what he perceived to be excessive use of force in an
arrest of
another person.73 Glik was charged with a criminal violation of the
statute,74 but
the charges were dismissed because the statute only prohibits
secret
recording, not the recording Glik made openly by holding out his
cellphone.75 Glik,
now a criminal defense lawyer, has since filed a § 1983 suit
against his
arresting officers.76 The First Circuit has denied the officers qualified
immunity:
Glik’s First Amendment right to record public officials should have
been evident,
and his Fourth Amendment right to be free of seizure without
68. Id. at
971–72 (Marshall, C.J., dissenting) (noting that had Holliday made his
recording in
Massachusetts,
he could have been prosecuted under the majority’s holding).
69. Id. at
970 (majority opinion) (quoting CAL. PENAL CODE § 632 (West 1999)).
70. See id. at 975 (Marshall, C.J., dissenting).
71. Id. at
975–76.
72. Id. at
976.
73. Harvey
Silverglate & James Tierney, Echoes
of Rodney King, BOSTON PHOENIX,
Feb. 21, 2008,
http://thephoenix.com/boston/news/56680-echoes-of-rodney-king/.
Notably, Glik was a practicing lawyer
at the time. Id.
74. These
criminal charges made it difficult for Glik, who graduated from New England
School of
Law at the top
of his class, to find a job with a prosecutor’s office. Id. The
ironic injustice is deafening.
75. See id. The recording in Hyde
was made in secret, and the statute defines
“intercept” as “to
secretly hear, secretly record, or aid another to
secretly hear or secretly record” communications. MASS.
GEN. LAWS ch.
272, § 99(B)(4) (2011) (emphasis added).
76. Glik v.
Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Danielle Riendeau, Major News About the Glik
Case!, MASS RIGHTS BLOG (June 8, 2010, 4:15 PM),
http://www.massrightsblog.org/2010/06/major-newsabout-
glik-case.html.
2012] SURVEILLANCE
& POLICE MISCONDUCT 1409
probable cause
should have been clear as he was recording the officers openly,
not secretly.77
But even under
the rationale behind the dismissal of the charges against Glik,
Holliday would
still have been guilty of violating the statute, just as the Hyde
dissent said.
The protection for blatant recordings of police officers, while at
least an
exception in hard-line Massachusetts, actually does little to curb police
abuse and
misconduct. Asking citizens to be mindful of police action, as the
Rodney King
incident did, is one thing, but asking them to be openly confrontational
if they want to
aid in the fight against injustice is another. For citizens to
record police
misconduct within the confines of the Massachusetts law, the
police officer
must be made aware of the recording. The inanity of the requirement
for capturing
and reporting misconduct should be obvious. Asking everyone
to do as Simon
Glik did is impractical. There is value in furtive recording of
police
misconduct: the police will not dissemble if they do not know they are
being watched,
and the recorders can feel a greater sense of security that neither
their safety
nor their livelihood will be threatened by a resulting arrest and
prosecution.
That is, assuming they do not get caught in the act in Massachusetts.
C. ILLINOIS’S
CONVERSATION
While both
Washington and Massachusetts courts have engaged in essentially
one-sided
conversations with their legislatures about what sorts of recordings
the states’
surveillance statutes are meant to encompass, the courts and legislature
of Illinois
have engaged in a dialogue. Illinois originally enacted an
eavesdropping
statute that required all-party consent in 1976.78 In 1986, in
People v.
Beardsley, the Illinois Supreme
Court held that the statute implicitly
required that a
person claiming that the recording was made without his consent
must have had
an expectation of privacy in the communication.79 Robert
Beardsley was
pulled over for speeding, arrested, and placed in the back seat of
the officers’
vehicle. The officers sitting in the front seat engaged in conversation,
and Beardsley
recorded them without their knowledge. Over the prosecution’s
argument for
the plain meaning of the statute, the court determined that
the generally
accepted definition of eavesdropping involves a surreptitious
listening to
private conversation; if the officers had expected their conversation
to be private,
then they should not have conducted it in the presence of
Beardsley.80 Basically,
the court held that the statute implied an expectation of
privacy. But
the Illinois legislature flatly disagreed with the court’s interpretation
and amended the
definition of “conversation” in 1994: “For purposes of
this Article,
the term conversation means any oral communication between 2 or
77. Glik,
655 F.3d at 85, 88.
78. 720 ILL. COMP.
STAT. ANN. 5 / 14-2 (West 2011).
79. People v.
Beardsley, 503 N.E.2d 346, 349–50 (Ill. 1986).
80. Id.
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more persons
regardless of whether one or more of the parties intended their
communication
to be of a private nature under circumstances justifying that
expectation.”81
The Illinois legislature apparently concluded that the requirement
of an expectation of privacy, one manifested by enough indicia
that a court
would recognize
it, would not provide adequate protection to privacy interests.
It may be just
coincidental that the recording that resulted in the court
decision that
prompted the legislature to amend the statute involved police
officers.
Nevertheless, the intent of the legislature was to “restore[] an all-party
consent
provision to [the] law in Illinois, regardless of whether the parties really
intended their
conversation to be private or not.”82 In People
v. Rodriguez, the
court noted
that the Beardsley approach to privacy interests was rejected,
and
like in Hyde,
expectations of privacy were irrelevant to prosecutions for violation
of the
eavesdropping statute.83 The Illinois courts have expanded the
meaning of
consent to include implied consent: if a party continues communicating
in the face of
a known recording, without ever explicitly affirming the
recording, he
has effectively consented and thereby rendered the statute inapplicable.
84 Such an
allowance may permit the Illinois courts to make a move
similar to the
one made in Glik, where a forthright attempt to record
destroyed
the requirement
of surreptitiousness.85 However, unlike the Massachusetts statute,
the Illinois
statute does not contain secrecy language; to the contrary, the
legislature has
affirmatively disavowed the need for secrecy or confidentiality as
applied to the
conversation.86 Whether the same would apply to the recording is
up for debate.
Illinois is now
in the spotlight for its prosecution of recorders of police
officers.
Christopher Drew, an artist, was arrested for selling his art on the street
without a
permit (a misdemeanor) but he was ultimately charged for recording
the arresting
officer (a felony).87 Tiawanda Moore went to Chicago Police
Headquarters to
file a sexual harassment complaint against a police officer;
during the
ensuing meeting with Internal Affairs officers, Moore used her
Blackberry to
record their attempts to convince her not to go forward with the
complaint.88 Moore,
too, was arrested for violating the eavesdropping statute.
The judge in
Drew’s case recently ruled the statute unconstitutional, joining
another state
judge whose similar ruling last fall is currently before the state
81. 720 ILL. COMP.
STAT. ANN. 5 / 14-1 (West 2011); see
People v. Rodriguez, 730 N.E.2d 1188, 1193
(Ill. App. Ct.
2000) (noting that the legislature amended § 14-1 after Beardsley).
82. Opinion
from James E. Ryan, Ill. Att’y Gen., to the Hon. James W. Glasgow (Dec. 3,
1996) (File
No. 96-036)
(evoking remarks of Sen. Dillard, Senate Debate on Senate Bill No. 1352, 139
(Apr. 21,
1994)).
83. See Rodriguez, 730 N.E.2d at 1193.
84. See People
v. Ceja, 789 N.E.2d 1228, 1240–41 (Ill. 2003).
85. Implied
consent likely would not encompass an officer shouting that it is illegal to
record him.
86. See supra note 82.
87. See Don
Terry, Eavesdropping Laws Mean
That Turning On an Audio Recorder Could Send You
to Prison, N.Y. TIMES, Jan. 23, 2011, at A29.
88. Id.
2012] SURVEILLANCE
& POLICE MISCONDUCT 1411
supreme court;
Moore was acquitted in a jury trial, after arguing that her
situation fell
under the law’s exception for recording when there is a “reasonable
suspicion” that
a crime may be committed.89 The ACLU challenged the
Illinois
statute in federal district court on First Amendment grounds: it claimed
a violation of
a right to gather information through its police-monitoring
program, in
which ACLU operatives monitor police activity at public demonstrations
and protests
through audio and visual recording.90 The group is currently
appealing the
trial court’s dismissal of the case for lack of standing based on the
reasoning that
the rights of a “willing speaker” are not clearly threatened by the
statute.91
The actions of
individuals like Tiawanda Moore, Simon Glik, and James
Flora should be
applauded. Arguably, they were braver than George Holliday,
because they
confronted the police for their misconduct whereas Holliday
watched from a
distance. Any vigilant citizen who takes steps to hold law
enforcement up
to a high standard should be commended, regardless of whether
he places
himself in legal jeopardy. But the individuals who are most in need of
the ability to
protect themselves from police misconduct are those who are most
likely to be
caught in the act of raising a camera lens to protect their rights:
those involved
in a police encounter gone awry. The prosecution of these
individuals
represents a grave misapplication of the purpose of surveillance
laws and
threatens the general public’s ability to hold law enforcement officers
accountable for
their misconduct.
At the oral
argument of ACLU v.
Alvarez in the Seventh Circuit, the
following
exchange
occurred:
Judge Richard
Posner: Once all this stuff can be recorded, there’s going to be
a lot more of
this snooping around by reporters and bloggers.
Attorney for
the ACLU Richard O’Brien: Is that a bad thing, your honor?
Judge Posner:
Yes, it is a bad thing. There is such a thing as privacy.92
89. Jason
Meisner, Eavesdropping Law
Unconstitutional, Court Says,
CHI. TRIB., Mar. 3, 2012, http://
articles.chicagotribune.com/2012-03-03/news/ct-met-eavesdropping-law-ruling-0303-20120303_1_eavesdropping-
statute-police-internal-affairs-investigators-innocent-conduct;
Jason Meisner & Ryan Haggerty,
Woman Who
Recorded Cops Acquitted of Felony Eavesdropping Charges, CHI. TRIB., Aug. 25,
2011,
http://articles.chicagotribune.com/2011-08-25/news/ct-met-eavesdropping-trial-0825-20110825_1_
eavesdropping-law-police-officers-law-enforcement.
90. See ACLU
v. Alvarez, No. 10-C-5235, 2011WL 66030, *4 (N.D. Ill. Jan. 11, 2011).
91. Id. The
district court’s reasoning seems to be partially based on the ACLU’s explicit
intent to
record many
conversations to which its members are a nonparty (which would violate even a
one-partyconsent
statute). Id. The
ACLU filed an appeal which is currently pending in the Seventh Circuit. See
Allie Carter, Appeal Filed in ACLU v. Alvarez, ACLU OF ILL. (Apr. 20, 2011,
4:43 PM), http://www.acluil.
org/appeal-filed-in-aclu-v-alvarez/.
92. Oral
Argument at 7:57, ACLU v. Alvarez, No. 11-1286 (7th Cir. Sept. 13, 2011), available at
http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno_11-1286&submit_showdkt&yr_11&num_
1286; see also Eric E. Johnson, Judge
Posner Worried By Mic-Wielding Bloggers,
BLOG LAW BLOG
(Sept. 27,
2011, 8:33 AM), http://bloglawblog.com/blog/?p_3448.
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Whether the
Seventh Circuit will follow the First Circuit’s approach in Glik
remains to be
seen, but Judge Posner has already honed in on the problem that
the
proliferation of recordings will cause in the digital age. With the approaches
of the various
states understood, the tension between the good in recording
police officers
and the bad in abusing the recordings on the Internet can be
better
explored. The rapid advance of technology is the source of that tension.
III. READY FOR
THE CLOSE-UP: POLICE ACCOUNTABILITY THROUGH
TECHNOLOGICALADVANCES
Technological
innovation has made monitoring of the police far easier.
Watchful
citizens can utilize more sophisticated devices, ones with greater
recording
capabilities and ones less obvious to the eye of the recorded. The trust
the general
public places in visual records renders the recordings practically
essential to
reporting or prosecuting police misconduct; police even will record
themselves to
refute later charges of constitutional violation.93 The emphasis on
visual records
has led some to theorize that the citizenry at large, in counter to
the state,
should engage in constant surveillance of their surroundings.94 All this
is to suggest
that, despite any barriers all-party consent statutes may pose,
police officers
should be getting ready for their close-ups. Yet, the Internet
dictates that
the readying be not for a single take, but for a perpetually recorded
encounter, one
in which the minutest detail can be readily scrutinized and
potentially
used for harmful purposes.
A. INNOVATIONS
IN RECORDING TECHNOLOGY
The rapid
advances in recording capabilities over the past decades have
revolutionized
information gathering and sharing. While once confined to comparatively
obtrusive
devices such as George Holliday’s Sony Handycam, individuals
can now
efficiently and discretely make audio and visual recordings
unbeknownst to
those around them by using devices that can be hidden in plain
sight or be
readily concealed.95 This technological advance makes recording
police officers
both easier and safer.
Massachusetts
specifically expressed a concern about the influence of developing
technology on
the ability of individuals to record others without their
knowledge. The
statute’s preamble expresses concern for the “uncontrolled
development”
and “unrestricted use” of “modern” devices.96 It condemns the
“secret use” of
such modern devices by “private individuals,” though it makes
93. See infra section III.B.
94. See infra section III.C.
95. Annys Shin,
Traffic Stop Video on YouTube Sparks Debate
on Police Use of Md. Wiretap Laws,
WASH. POST,
June 16, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/06/15/
AR2010061505556.html.
96. MASS. GEN.
LAWS ANN. ch. 272, § 99 (West 2011).
2012] SURVEILLANCE
& POLICE MISCONDUCT 1413
allowances for
law enforcement use for the investigation of organized crime.97
With little
trouble, the preamble could be read to equate “uncontrolled development”
with mere
technological innovation and “unrestricted use” with individual
ability to
wield “modern” devices. At first blush, an admonishment of
society’s
growing comfort with technology seems reductive. Surely, Massachusetts
would want its citizens
to be well attuned to technological progress and to
desire
technical acumen. Because of the unstoppable scientific and market
forces that
propel the development of recording devices, Massachusetts citizens
can naturally
equip themselves to use something now considered commonplace:
a cellphone.98
If the
Massachusetts preamble is read more reasonably, it can be interpreted
as a desire to
curtail the use of easily concealed devices for nefarious purposes.
Presumably,
that is why the legislature carved out an exception for police use of
modern devices
for the purposes of catching criminals engaged in organized
crime. Why
would the state not wish its citizens to be able to police the police
as well? Law
enforcement officers are just as capable of engaging in criminal
and
constitutional violations in the course of their duties. Quite simply, “[n]ew
portable
technology—digital cameras, camera-ready cell phones, MP3 recorders,
and other
technology—enables people to produce their own personal
records of
their lives and environment, including their confrontations with
police . . . .”99
Citizens are now able to arm themselves effectively with the
intent of
capturing police officers engaged in misconduct and, more importantly,
to react on the
spot to police misconduct through the use of devices regularly on
their person.
Glik was not looking for police misconduct but instead responded
to it
instantaneously, on the street, because he was carrying his cellphone as he
always did.100 Society
may have become overly dependent on BlackBerries,
iPhones, and
Androids, but the omnipresence of these items has the power to
transform any
citizen into a potential vindicator of civil rights.
B. PRIVILEGING
VIDEO
The ability of
the public at large to hold police officers accountable for their
actions through
video recordings serves as a powerful check against police
misconduct. In
fact, video recordings may be essential in the absence of other
effective
methods of reporting abuses and holding police accountable. Existing
checks may be
insufficient; the potential corruptions of intradepartmental accountability,
the prohibitive
costs of § 1983 suits, and the narrow applications of the
97. Id.
98. Simon Glik
used a cellphone, and he was almost jailed because of it. See supra notes 73–77 and
accompanying
text.
99. Howard M.
Wasserman, Orwell’s Vision: Video and
the Future of Civil Rights Enforcement,
68
MD. L. REV.
600, 600 (2009).
100. Silvergate
& Tierney, supra note 73. In contrast, the Rodney King
incident may not have come
to light if it
did not occur outside the apartment of an owner of a camcorder; at that time,
people
normally did
not walk around with a device capable of recording video.
1414 THE GEORGETOWN
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exclusionary
rule all point toward the indispensability of hard, video documentation.
101 Video
documentation inevitably leads to publicity, as was the case with
Rodney King,
and publicity can lead to pressure to reform, as also was the case
with Rodney
King.102
The advent of
video-recording capabilities has already dramatically affected
the way
law-enforcement officers comport themselves, as seen most notably in
the voluntary
installation of video cameras on police-car dashboards and in
interrogation
rooms. A significant percentage of law-enforcement officers have
come to embrace
subjecting themselves to the eye of the camera lens: the
recording
serves as a defense to later charges of misconduct or constitutional
violation.103 Although
the officers may control when and whether to turn on the
camera or switch
it off, any semblance of a willingness by law enforcement to
hold themselves
accountable reflexively for their interrogative and investigative
behavior is a
step in the right direction.
The importance
of video evidence has grown in recent years.104 A “pictures
or it didn’t
happen” attitude is logical given the ease of proving events occurred
as described
through visual confirmation. The ability of a person—whether a
police officer
defending a confession as voluntary or a citizen alleging arrest by
unreasonable
force—to demonstrate the event via video can significantly augment
a case.
Conversely, video footage can remove the taint of exaggerated and
emotional
testimony and memory-based recounting. However, there are also
concerns that
must be mitigated.
The courts have
embraced video evidence to the point that the Supreme Court
has practically
ruled it dispositive. In Scott v.
Harris, a police officer engaged
Harris in a
high-speed chase and rammed into the back of his car; Harris was
rendered a
quadriplegic and filed a § 1983 suit.105 In determining whether there
was a
legitimate threat to others posed by the plaintiff’s reckless driving (and
therefore a
justification for the ramming), the Court went to the video.106
Because the
officer had been granted summary judgment at trial, there were
no factual
findings before the Court.107 Although a reviewing court must take
facts from the
viewpoint of the nonmoving party,108 the Court referred to the
videotape,
which was created by the video camera on the officer’s dashboard at
101. See Dina
Mishra, Comment, Undermining
Excessive Privacy for Police: Citizen Tape Recording
To Check
Police Officers’ Power, 117 YALE
L.J. 1549, 1552–54 (2008).
102. See id. at 1554–55.
103. See Skehill,
supra note 61, at 997; see
also Jason Trahan & Tanya
Eiserer, In-Car Video More
Likely To
Clear Police Officers Accused of Misconduct, Experts Say, DALLAS MORNING NEWS, Aug. 15,
2009,
http://www.wfaa.com/news/local/64504807.html.
104. The
literature on use of video in the courtroom is wide and varied. See, e.g., Jessica Silbey,
Evidence
Verite´ and the Law of Film, 31 CARDOZO L. REV. 1257, 1257–59 (2010);
Wasserman, supra
note 99.
105. 550 U.S.
372, 375–76 (2007).
106. Id. at
380–82.
107. Id. at
378.
108. Id.
2012] SURVEILLANCE
& POLICE MISCONDUCT 1415
the time of the
chase, as an “added wrinkle” in considering the Eleventh
Circuit’s
finding, as if to say existence of a video record changes everything
(apparently
including fundamental edicts of civil procedure).109 Rather than
considering the
case from the vantage point of the facts pled by Harris, the
Court
confronted the video footage, which, according to Justice Scalia, showed
“a
Hollywood-style car chase of the most frightening sort.”110 Accordingly, the
Court reversed
the lower court’s ruling against Deputy Scott’s motion for
summary
judgment on the grounds that his action was necessary for the
protection of
innocent bystanders.111
In response to
Justice Stevens’ dissent, which accused the Court of overstating
the drama
depicted in the video,112 Justice Scalia explicitly invited the
public to view
the video: “We are happy to allow the videotape to speak for
itself.”113 The
privileging of video footage is clear. Jessica Silbey notes that film
footage is
routinely introduced in courts as “best evidence” and subsequently
“overwhelm[s]”
all other forms of evidence.114 She characterizes video footage
of arrests,
confessions, and the like as “evidence verite´” and notes that it is
rarely
questioned, if at all. The truth of the video is often presumed.115 However,
as Silbey
notes, video in other contexts is subjected to greater critical
analysis. She
argues, for example, that the public understands that a documentary
may involve
selective editing. And surely the public understands that
reality television
often does not accurately represent the lives of its subjects.116
Why, then, is
there not a similar analytical treatment of video evidence in court?
Presumably,
when introduced in a court of law, a video recording has not
been altered
and accurately presents an event precisely as it occurred. But, what
of the moments
before the recorder was turned on? What of the atmospheric
conditions that
could have obscured certain objects or camera placement that
could have
rendered other objects larger or smaller than they actually are?
Courts must
develop a method for applying appropriate scrutiny to video
evidence.
Electronically documented accounts of legally relevant events, including
incidents of
police misconduct, are a crucial resource. The validity of
recordings
cannot afford to be hindered by cinematography tricks that an
amateur film
student would be capable of. When looked at with a critical eye,
not only is the
legitimacy of a video recording ascertained, but also the severity
of the depicted
event or encounter. A court can then view and appreciate the
alleged
misconduct through the eyes of the victim. As the number of pairs of
109. Id.
110. Id. at
380.
111. Id. at
386.
112. Id. at
390 (Stevens, J., dissenting).
113. Id. at
378 n.5 (majority opinion) (providing a link to a copy of the video kept on the
Supreme
Court’s
website). Justice Breyer’s concurrence similarly encouraged watching the video.
Id. at
387
(Breyer, J.,
concurring).
114. Silbey, supra note 104 at 1257.
115. Id. at
1257–58.
116. See id. at 1258–59.
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eyes trained on
the conduct increases, a court’s understanding of the incident
increases as
well.
C. SOUSVEILLANCE
The statutes
that criminalize audio and visual recording without consent can
also be
referred to as “surveillance statutes”; this moniker can apply to all
wiretapping
statutes whether they require merely one-party or all-party consent.
Though
all-party consent surveillance statutes are arguably misapplied in cases
of prosecution
of individuals engaged in surveillance of state actors (the police),
the underlying
legislative intent is a concern for the privacy of individuals and
for the freedom
to engage in conversation or speech without fear of unwanted or
undue
monitoring.117 Unwanted surveillance immediately conjures the idea of
an Orwellian
society, one in which the state (or other individuals with foul
motives) can
intrude on the private lives of unwitting individuals who did not
consent to
others’ listening. The fear of unregulated surveillance is a fear of a
so-called “eye
in the sky,” a fear of the shadowy operative who has wiretapped
a private phone
line, a fear of “Big Brother,” be he state-sponsored or private. A
citizenry that
refuses to accept these invasions may strike back. It may fight fire
with fire, or
surveillance with a surveillance of its own—“sousveillance.”
Surveillance
and its sociological impacts have been the subject of several
philosophical
inquiries. Jeremy Bentham, the eighteenth-century English philosopher,
conceived of a
prison structure in which prisoners would always feel
exposed to the
eye of prison guards or authority figures.118 The building, termed
“Panopticon,”
would have a roughly circular shape in which prisoners reside in
cells that
circled the circumference of the building.119 A circular tower would
stand in the
middle and provide an unobstructed view of every cell and every
prisoner.120 Ideally,
the tower would be constructed in a way that allowed
viewing of the
prisoners without them knowing that they were being watched,
perhaps through
the use of blinds (or, in the modern day, tinted glass).121 If the
prisoners did
not know when and if they were being watched, then, the
hypothesis
goes, they would constantly have to conform their behavior under
the assumption
that the eye was trained on them. The threat of exposure would
ensure
discipline.122
Michel Foucault
contended that the theoretical concept of the Panopticon has
woven its way
into other aspects of society.123 While other structures—
117. See supra Part I.
118. See JEREMY
BENTHAM, THE PANOPTICON, THE PANOPTICON WRITINGS (Miran Bozˇovicˇ ed., Verso
1995) (1791).
119. See MICHEL
FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 200–01 (Alan Sheridan
trans.,
Pantheon Books 1977) (1975).
120. Id.
121. Id. at
201.
122. Id.
123. See id. at 195–228 (describing the theoretical concept of a Panopticon).
2012] SURVEILLANCE
& POLICE MISCONDUCT 1417
hospitals, for
instance—may employ the design, Foucault argued that the state
can create a
panoptic-type culture through the use of hierarchies and governmental
monitoring. The
dystopian world of George Orwell’s 1984, in which citizens
must operate
under the assumption that they are perpetually watched and
listened to,
functions just as much as a Panopticon as any literal edifice of
concrete and
steel.124 A surveillance state effectively produces a Panopticon,
and a populace
conforms and cowers as a result.
The opposite of
surveillance from above is surveillance from below, or
sousveillance.
As expounded by technological philosopher Steve Mann, sousveillance
offers a
counteracting force for a citizenry subjected to constant surveillance.
125 While a
person cannot destroy the cameras or eyes that constantly
watch him, he
can return the gaze. If those being watched become the watchers
of the
watchers, then the cowing effect of surveillance, at the least, can be
minimized.
Mann’s
conception of sousveillance is just as inextricably intertwined with
technology as
surveillance has become. He urges the incorporation of wearable
technology into
people’s everyday lives.126 Anthony Graber’s story provides a
relevant
example of such a form of technology incorporation.127 Graber may
not have set
out to record potential police misconduct, but because he had a
continuously filming
camera that the officer could not readily recognize, misconduct
was exposed.
Mann would have individuals hang cameras around their
necks and
thereby literally put forth their actions—the recording of everything
they see.128 Metaphorically,
like the albatross, a camera represents the burden
that an
individual must bear around his neck in the face of the prying eyes and
ears of
authority—the burden to fight back. On the other hand, the literal
124. GEORGE ORWELL,
1984 (Alfred A. Knopf, Inc. 1992) (1949).
125. See Steve
Mann et al., Sousveillance:
Inventing and Using Wearable Computing Devices for
Data
Collection in Surveillance Environments,
1 SURVEILLANCE & SOC’Y 331, 332 (2003); see also
David A.
Harris, Picture This: Body-Worn
Devices (Head Cams) as Tools for Ensuring Fourth
Amendment
Compliance by Police, 43 TEX. TECH L.
REV. 357, 360 (2010).
126. The more
technology one incorporates into his literal person, the closer one comes to
achieving
cyborg
status—the legal implications of which are not yet fully developed. See, e.g., Gowri Ramachandran,
Against the
Right to Bodily Integrity: Of Cyborgs and Human Rights, 87 DENV. U. L. REV. 1,
11–12 (2009)
(“For instance, in the case of a pacemaker or a robotic arm, humans are merging
with
inorganic
property of the sort that is routinely and uncontroversially commodified . . .
. In the long run,
as these
mergers between people and property become more common, sustaining different
formal legal
statuses for
people and other objects may appear more and more arbitrary.”).
127. See Shin,
supra note 95. Graber was doing motorcycle wheelies on the highways of
Maryland
and using a
camera discreetly mounted on his helmet to record his hijinks for posterity. An
unmarked
car swerved in
front of him and a man emerged while yelling and brandishing a gun. Eventually
the
man revealed
himself to be an off-duty police officer who had stopped Graber because of his
reckless
motorcycling,
but Graber was understandably upset by the unprofessional start to the
encounter. He
later posted
video footage of the encounter on YouTube, and as Maryland is an all-party
consent state,
see MD. CODE ANN., CTS. & JUD. PROC. § 10-402
(LexisNexis 2011), he was subsequently arrested. After
contributing to
the uproar as of late over these sorts of prosecutions, the surveillance
charges were
eventually
dismissed. Id.
128. See Mann,
supra note 125, at 336.
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integration of
technology into one’s person may be unnecessary given that cell
phones have
metaphorically become an extension of the average modern day
person’s arm.
After all, Simon Glik was able to whip a camera phone out of his
pocket at a
moment’s notice.129 To what extent do the authorities have to be
able to
visually confirm that they are being recorded for sousveillance to have
an impact?
If Foucault is
right, then although an individual will undoubtedly feel subjugated
in the
Panopticon system with its literal threat of a watchful eye, he can
feel just as
subjugated without the presence of literal surveillance because of the
nature of
societal and governmental hierarchies.130 Law enforcement undoubtedly
represents the
watchful eye of the government even if it does not literally
wield a camera
or tape recorder. Training a camera on law-enforcement activities
makes good
sense, just as a pushback against authoritarianism makes good
sense.
For example, a
British citizen group has engaged in deliberate sousveillance
to great
effect.131 FITWatch has taken a stand against the Forward Intelligence
Team (FIT), government
operatives that attend protests to capture protesters on
film.132 Concerns
about protester safety have motivated members of FITWatch,
but FITWatch
also undoubtedly provides an outlet for anti-authoritarian sentiment.
FITWatch
attends protests in the United Kingdom and takes pictures of
the authorities
taking their own pictures.133 Two purposes are served. First, the
immediate
sousveillance that occurs at an event, in which police are made
aware that they
are being watched as they watch, has a psychological impact on
the officers.134
Second, the recorded images are then placed on FITWatch’s
website so that
its viewers are better able to identify those who might be
watching them.
FITWatch
concerns itself, first and foremost, with the protection of protester
rights; its
primary aim is not the curtailment of police misconduct (though any
revealing of
such behavior is an added bonus).135 North Americans have picked
up that mission
more directly in the form of Copwatch, a network of local
organizations
throughout the United States and Canada devoted to the monitoring
and reporting
of police abuse and misconduct.136 The organizations encourage
the reporting
of any complaints filed against the police and also the
129. See supra notes 73–77 and accompanying text.
130. See FOUCAULT,
supra note 119, at 195–228.
131. Finlo
Rohrer, When All Video All, BBC NEWS (Apr. 21, 2009, 12:26 GMT),
http://news.bbc.co.uk/
2/hi/uk_news/magazine/8010098.stm.
132. FITWATCH,
http://www.fitwatch.org.uk/about/ (last visited Dec. 19, 2011). FIT takes video
presumably for
purposes of identifying those most upsetting to governmental interests, though
FIT
would argue the
video capture is for safety purposes.
133. Id.
134. Rohrer, supra note 131 (quoting Professor Robert Reiner as saying that “[i]t
would be very
surprising if
most [police officers] would be unaffected.” (alteration in original)).
135. See supra note 132 and accompanying text.
136. See BERKELEY
COPWATCH, http://www.berkeleycopwatch.org/ (last visited Oct. 15, 2011).
2012] SURVEILLANCE
& POLICE MISCONDUCT 1419
documentation,
by whatever means necessary, of abuse as it happens.137 The
underlying
theory must be that, as happened with Rodney King, if the public is
made aware of
these abuses, pressure will be placed on the police to stop.
The
intersection of recorded encounters and social media has begun to rend
the “sacred
canopy” of policing.138 As British criminologists have noted, the
proliferation
of Internet postings of negative police encounters has forced law
enforcement organizations
to turn their eyes inward, almost self-consciously, to
conduct damage
control and assess the efficacy of internal accountability mechanisms.
139 As was the
case with the reputation of the entire Los Angeles police
department
following the Rodney King incident, “the actions of an individual
can damage the
standing of the organization as a whole.”140 Consequently,
entities such
as FITWatch and Copwatch can encourage greater internal policing
of behavior
within police departments. “Practices of sousveillance, powered by
video and
internet technologies, have dramatically expanded the visibility of
policing,”141 and
law enforcement agencies are learning to adapt and to better
their
organizations in the ever-widening gaze of the public.
The goals of Copwatch,
FITWatch, and everyday citizens engaged in their
own forms of
sousveillance are honorable; police misconduct undoubtedly
should be
fought to the greatest degree possible. The Internet, in particular, has
profoundly
augmented the ability of citizens to retaliate against police misconduct
by airing
inhumane conduct in the technological commons of the World
Wide Web. The
video of the police officer that screamed at Anthony Graber
while wielding
a gun without ever identifying himself, apparently just because
Graber was
doing wheelies down the highway, served the ultimate purpose of
humiliating the
officer and hopefully encouraging officers in the future not to
engage in such
abuses of authority.142 Maryland’s prosecution of Graber, then,
resonates as injustice
of the highest order; the criminalizing of the recording
does not make
sense in a society that encourages checks against tyrannical
behavior. But
nothing compares to the tyranny of the public as channeled
through the
Internet.
IV. THROUGH A COMPUTER
SCREEN, DARKLY: RECORDINGS AND THE INTERNET
In a
metaphorical sense, the recording of a police encounter no longer ends
when a person
turns off the camera. More often than not, the recording is posted
online.
Although the rationale for forbidding the recording in the first instance is
dubious at
best, there is a far more reasonable concern with what can occur once
the recording
is widely distributed to the masses, especially through the Inter-
137. Id.
138. Andrew
John Goldsmith, Policing’s New
Visibility, 50 BRIT. J. CRIMINOLOGY 914,
930 (2010).
139. See id. at 931.
140. See id.
141. Id. at
930.
142. See Shin,
supra note 95.
1420 THE GEORGETOWN
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net.
Individuals can easily engage with information on the Internet in an
anonymous manner
and thereby render corrective action nearly impossible. This
inability poses
a problem. Although it could be argued that the public effectively
signed away its
privacy interests the minute it sent its first instant
message, the
reality is that privacy can still be valued in cyberspace. Even dirty
cops have some
privacy rights that should not be entirely derogated.
A. PERVASIVE
ANONYMITY
Near-universal
access to the Internet makes it a powerful source for information
dissemination
and acquisition. While this applies to mainstream news sites
and
informational databases, the more important trend is the growing ability of
the global
populace to upload and personally engage with Internet content.
Wikipedia
allows anyone to update and improve, or graffiti, articles about any
topic.143 These
articles may even find their way into legal casebooks.144 CNN
has recently
launched iReport, in which CNN readers can become “citizen
journalists” by
posting content on CNN’s website.145 A person is now just as
likely to consume
the Internet’s resources as he is to contribute to them, be it
through
blogging, social networking, or commenting. The latter seems a particularly
unlikely source
for meaningful contribution, but given its ease and omnipresence,
it may best
represent the average user’s style of cyber-engagement:
anonymous
postings.
Websites such
as those run by Gawker Media and the Huffington Post, which
are essentially
quasi-news outlets fully adapted and integrated into the Internet
style of
journalism, will typically make commenting available on their story
posts.146 Commenting
simply refers to posting one’s thoughts about a given
article or
story, usually under a username. The relative anonymity of these
comments grants
the commenter freedom to say whatever he feels. This can
result in
“trolling”—purely obnoxious or offensive commenting that has no
purpose other
than being annoying or hurtful.147 In writing of the connection
between
anonymity and immorality, Plato argued that morality depends on full
disclosure, and
that no one would always behave justly in the absence of
143. Wikipedia:About, WIKIPEDIA,
http://en.wikipedia.org/wiki/Wikipedia:About (explaining the way
Wikipedia works
and how users can contribute to the online encyclopedia) (last visited Oct. 25,
2011).
144. See, e.g., RICHARD EPSTEIN, CASES AND MATERIALS ON TORTS 42 (9th ed. 2008)
(referring readers
to Wikipedia
for further information on Abigail
Alliance for Better Access to Developmental Drugs v.
Von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007)). In a
beautiful act of symmetry, the online article also
urges readers
to see Epstein’s casebook. Abigail Alliance v. Von Eschenbach, WIKIPEDIA,
http://en.
wikipedia.org/wiki/Abigail_Alliance_v._von_Eschenbach
(last visited Nov. 7, 2011).
145. See iReport, CNN, http://ireport.cnn.com/ (“iReport is a
user-generated section of CNN.com.
The stories
here come from users. CNN has vetted only the stories marked with the ‘CNN’
badge.”)
(last visited
Oct. 25, 2011).
146. See Getting Started with Comments, GAWKER, http://help.gawker.com/forums/20054216-gettingstarted-
with-comments#popular
(last visited Mar. 3, 2012); Frequently
Asked Questions, HUFFINGTON
POST,
http://www.huffingtonpost.com/p/frequently-asked-question.html (last visited
Mar. 3, 2012).
147. See Julie
Zhuo, Op-Ed., Where
Anonymity Breeds Contempt, N.Y. TIMES,
Nov. 29, 2010,
http://www.nytimes.com/2010/11/30/opinion/30zhuo.html.
2012] SURVEILLANCE
& POLICE MISCONDUCT 1421
accountability.148
To a certain extent, for those who are technologically savvy
enough, the
Internet provides a near anarchical space in which the Id can roam
freely and
cruel or childish urges can be acted upon without fear of punishment.
But what does a
concern with trolls and their ilk have to do with police
brutality? It
is noble and moral to record and broadcast police misconduct to the
world as
FITWatch and Copwatch do. The motivations of a person who uploads
that footage
are likely pure and good.149 Further, the person’s behavior cannot
be considered
any more morally suspect than that of journalists who capture
photographs and
videos and transmit them via print and broadcast. The trouble
lies in what is
then done with the footage. With millions of anonymous users all
over the globe
watching footage of inhumane and unjust occurrences, subsequent
outrage can
prompt countless retaliatory acts. No longer is it necessary for
a person to go
down to the police station and demand an officer’s resignation or
call a local
representative to demand a task force study of police misconduct.
The Internet
makes more personal damage possible.
B. POTENTIAL
FOR HARM
In October of
2010, Saturday Night Live aired a sketch called “I Didn’t Ask
for This.”150 The
skit capitalizes on the popularity of Internet videos, posted on
sites such as
YouTube, that feature individuals engaged in stupid or laughable
behavior.
Although the skit was played for laughs on a late-night comedy
program, there
is some truth to the concept embedded in its title: formerly
nondescript
individuals are gaining Internet notoriety through the disparagement
and collective
finger-pointing occasioned by entertaining yet embarrassing
recordings
posted online. The anonymity of commenting on, let alone just
watching,
videos of people doing amusing things may relieve a viewer of the
guilt of laughing
at another person’s misfortune. As noted, “most trolls wouldn’t
have the gall
to say to another person’s face half the things they anonymously
post on the
Internet,”151 and most people would try to stifle their laughter if they
saw someone
engaged in embarrassing behavior in public. To some extent,
however, comedy
is comedy. Human nature dictates that if a person slips on a
banana peel,
those around him must laugh, and he shall accept it and move on.
While the
Internet can render fleeting moments of embarrassment virtually
permanent, at
least one can hope that a viewer would try to have compassion for
the poor sap
who got caught on video.
There will be
no compassion for Internet videos of law-enforcement officers
engaging in
police misconduct. And rightly so. The collective uproar against the
NYPD officer
who seemingly arbitrarily and roughly pushed a passing bicyclist
148. Id.
149. This
presupposes that the footage was not doctored or edited in any way. Given the
aforementioned
propensity to
privilege video as truth, it is unlikely for the average Internet user to
question the
video’s
authenticity. See Silbey, supra note 104, at
1257–58.
150. Saturday Night Live: “I Didn’t Ask for This”
(NBC television broadcast Oct. 30, 2010).
151. Zhuo, supra note 147.
1422 THE GEORGETOWN
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over seems just
and warranted; because of video footage of the incident, he was
brought to
trial on criminal charges and faced a penalty of up to four years in
prison.152 Though
found guilty, the officer, a rookie at the time of the incident,
was given a
sentence of “conditional discharge,” largely because of numerous
letters of
support detailing his commitment to public service.153 And because
this transpired
in New York, a one-party-consent state, no criminal charges
could be
brought against the bystander who happened to catch the footage on
film.154 But
even if the officer had been sentenced to a finite term in prison, the
video, to which
his name is attached, would still exist online, as it does to this
day. In other
words, the legal system considered punishing him for up to four
years, but
decided not to; in contrast, the Internet can punish him for the rest of
his life.
It is one thing
for video to be introduced as evidence into a court of law; it is
another thing
for the same video to be introduced as evidence onto the Internet,
a court of
public judgment. The outcry over the TSA’s augmented security
procedures at
the nation’s airports in November of 2010 was fierce. A traveler
videotaped his
encounter with a TSA officer at Los Angeles International
Airport.155 After
the traveler refused to go through the new full-body scanners,
he submitted to
a personal pat down, only famously to scream out, “Don’t touch
my junk!” as
the officer completed the uniformly mandated procedure.156 While
vitriol toward
the TSA officer has been subsumed under outcries about the
government in
general, the shame which the officer has had to endure as his
face is
conflated with what some call government-sanctioned molestation must
be overwhelming.
He was following orders. As, likely, were the University of
Florida
security officers to whom an unruly college student legendarily cried,
“Don’t tase me,
bro!”157 The latter incident resulted in accusations of excessive
force by the
guards.158 There were concerns that, as one University of Florida
student noted,
“the people we are supposed to trust would turn against us.”159 A
152. Police Officer Guilty in Bike-Shove Case, WALL ST. J. METROPOLIS BLOG (Apr. 29, 2010,
3:57
PM ET),
http://blogs.wsj.com/metropolis/2010/04/29/after-days-of-deliberation-jury-convicts-officer-inbike-
shove-case/.
Police brutality charges were not brought, but perjury charges were brought:
The
officer lied
under oath that he pushed the bicyclist as he veered into him, but the video
shows that the
officer charged
headlong at the bicyclist. Id.
153. Oren
Yaniv, Patrick Pogan, NYPD Cop
Who Pushed a Critical Mass Cyclist to the Ground,
Gets No Jail
Time, N.Y. DAILY NEWS, July 14, 2010,
http://articles.nydailynews.com/2010-07-14/news/
27069993_1_nyped-cop-jail-time-christopher-long.
154. Id. The
video made its way from YouTube, where it was originally posted, to mainstream
news
sites like
those of The Wall Street Journal and CNN.
155. See Charles
Krauthammer, Op-Ed, Don’t Touch My
Junk, WASH. POST, Nov. 19, 2010, http://
www.washingtonpost.com/wp-dyn/content/article/2010/11/18/AR2010111804494.html.
156. Id.
157. See Eunic
Ortiz, Students Stunned—and
Tired—About Taser Incident, CNN (Sept. 19, 2007),
http://articles.cnn.com/2007-09-19/us/cnnu.tase_1_taser-incident-female-officer-police-officers?_s_
PM:US; Sarah
Lai Stirland, “Don’t Tase
Me, Bro!” Jolts the Web, WIRED (Sept.
19, 2007 2:20 PM),
http://www.wired.com/threatlevel/2007/09/dont-tase-me-br/.
158. Ortiz, supra note 157.
159. Id.
2012] SURVEILLANCE
& POLICE MISCONDUCT 1423
healthy
dialogue about the propriety of Taser use began only at the expense of
the images of
the law enforcement officers whose faces are still visible in the
video four
years later.160 The shooter of the footage may have evaded criminal
charges, as
Florida is an all-party-consent state,161 because state courts have
interpreted the
statute to require the violation of a reasonable expectation of
privacy (which
a person likely could not have at a public speech).162
The
catchphrases that resulted from the above videos reveal the air of levity
that may have
contributed to their “going viral.” Arguably, there is even
something funny
about a bicyclist being abruptly pushed over.163 However,
when the
conduct in question is outright brutality, there is no room for levity, as
was the case
with the arrest of teenager Chad Holley.164 Despite judicial protest
after the fact,
the footage of the encounter had been leaked and was made
available on
YouTube and PoliceCrimes.com.165 The brutality captured in the
video
immediately conjures thoughts of Rodney King. But, a fair and impartial
jury is where
the courts of law and public judgment meet and clash. As the
judge noted,
release of this tape makes it difficult to ensure a fair jury of the
officers’ peers
in whatever trials result.166 The tape may not even be admitted at
their trial
because of the overwhelming prejudicial effect.167 That said, despite
the widespread
media dissemination of the Holliday video, the jurors at the
Rodney King
trial acquitted the officers anyway.168 That resulted in race riots
on a grand
scale.169 The pumping of these images into the public consciousness,
as made even
more possible because of the Internet, creates a potentially
precarious
climate for police officers.
Direct
retaliation against individual police officers implicated in these videos
seems more than
likely because of technological and informational resources.
Though police
brutality was not involved, the aftermath of a video of a woman
accosting a
postal worker verbally and physically is instructive of the harm that
160. Id.
161. FLA. STAT.
ANN. §§ 934.02–.03 (West 2011).
162. See State
v. Sarmiento, 397 So. 2d 643, 644–45 (Fla. 1981) (holding that “the definition
of
‘interception
of private communications’ is a function of one’s reasonable expectation of
privacy”
(quoting Katz v. United States, 389 U.S. 347 (1967))).
163. See supra notes 2–4 and accompanying text.
164. See Cindy
George & Brian Rogers, Video
Appears to Show HPD Beating Teen Burglar,
HOU.
CHRON., Feb. 2,
2011, http://www.chron.com/disp/story.mpl/metropolitan/7410587.html. Holley was
arrested in a
brutal manner by Houston police officers. A tape of the arrest was made by a
surveillance
camera. A legal
battle ensued in which media organizations demanded that the tape be released
to the
public on First
Amendment grounds, but the judge disagreed for fear of rendering a fair trial
impossible
for the police
officers who were charged with violating a suspect’s civil rights. Id. Even
a bystander
could have made
the recording legally, as Texas is a one-party consent state. TEX. PENAL CODE ANN.
§ 16.02 (West
2011).
165. See Houston Police Officers Kicking Beating
Handcuffed Teen, POLICE CRIMES.COM
(Apr. 29,
2010),
http://policecrimes.com/forum/viewtopic.php?t_8614 (last
visited Oct 25, 2011).
166. George
& Rogers, supra note 164.
167. Id.
168. See supra notes 1–5 and accompanying text.
169. Id.
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the Internet,
or its users, can inflict.170 The postal worker used his cell phone to
record the
woman as she demanded that he take a piece of mail back; she
subsequently
launched into a tirade of racial epithets that culminated in her
slapping him.171
The woman clearly engaged in vile and indecent behavior.
Fortunately for
the postal worker, as this transpired in Massachusetts, she
apparently “did
not care” if he used his cell phone to record their altercation.172
The video went
viral, and viewers were rightfully horrified by her behavior, as
seen in comments
on various blogs.173 Up to that point, the Internet arguably
served a valid
purpose in exposing injustice and racism: a dialogue resulted.
However, the
situation escalated. Metaphorically speaking, the Internet collectively
said: “Get
her!” Her name was found, as was information relating to
everything from
careers to real estate;174 she endured harassment via threatening
phone calls;175
and she was placed under police protection.176 Regardless of
whether this
torment was deserved, it occurred because she was videotaped, the
video was
posted, and then possibly because someone commented on YouTube:
“4CHAN FIND
HER!!”177
4chan is an
online community of sorts, a site for the sharing of user-generated
content through
message boards and forums.178 “The sheer power and influence
that 4chan is
able to wield online is difficult to deny and often goes beyond the
Internet.”179 The
site has served as the launching pad for numerous Internet
memes,
popularized graphics, and texts that have become running jokes across
the web.180 The
founder of the site notes: “‘The site is just a framework of
pictures and
text. There aren’t any rules.’”181 Unlike other social networking
sites like
Facebook and Twitter, anonymity is seemingly encouraged through the
adoption of
pseudonymous screen names. The networking that has transpired on
the site has
resulted in a collective ethos that the users share, for better or for
worse, which is
best seen in a related collective entity known as “Anonymous.”
Anonymous is
made up of a number of computer hackers located all over the
170. Adrian
Chen, Postal Worker Secretly
Films Customer’s Racist Rant,
GAWKER (Nov. 11, 2010,
11:55 PM),
http://gawker.com/#!5688054/postal-worker-secretly-films-customers-racist-rant.
171. Id.
172. Adrian
Chen, Racist Mailman Hater
Placed Under Police Protection,
GAWKER (Nov. 13, 2010,
1:25 PM),
http://gawker.com/#!5689166/racist-mailman-hater-placed-under-police-protection.
173. See id.
174. Adrian
Chen, Meet the Volvo-Driving
Racist Mailman Harasser, GAWKER (Nov.
12, 2010, 3:25
PM),
http://gawker.com/#!5688566/meet-the-volvo_driving-racist-mailman-harasser.
175. Chen, supra note 172.
176. Id.
177. Chen, supra note 170.
178. 4CHAN,
http://www.4chan.org (last visited Mar. 4, 2012).
179. Jenna
Wortham, Founder of a Provocative
Web Site Forms a New Outlet, N.Y. TIMES,
Mar. 13,
2011, at B1.
180. For
instance, 4chan users are credited with initiating the “Lolcats” phenomenon,
which the New
York Times describes as “pictures of cute cats paired
with quirky, misspelled captions.” Id.
181. Id. But see Rules, 4CHAN, http://www.4chan.org/rules (last
visited Oct. 25, 2011) (listing rules
that users must
follow when posting).
2012] SURVEILLANCE
& POLICE MISCONDUCT 1425
world.182 They
essentially engage in cyber-warfare to advance their causes,
causes that
undoubtedly have a moral (and perhaps just) tinge to them.183 Their
targets have
included opponents of WikiLeaks (such as PayPal and Visa) and
the Egyptian
and Tunisian governments.184 They have also made authorities
aware of threats
of mass violence and have even reported incidents of animal
cruelty.185 So
when a video viewer tells 4chan or Anonymous to “find” someone
to retaliate
against their despicable behavior, it is not difficult for them to do
so.186 Moreover,
it is in keeping with their sense of ethics to do so. The social
policy that
retaliation propagates is a double-edged sword. On the one hand,
these online
forces have made clear that their intentions are often honorable,
and a
significant percentage of the general public may agree strongly with their
targeting of
animal abusers, people threatening mass violence, or dictatorial
governments. To
that end, they should be commended. But the sharper edge of
the blade is
the condoning of online harassment and cyber destruction.187
As their
fondness for Guy Fawkes suggests, online users engaged in communities
like Anonymous
and 4chan may not have the highest regard for authority.
188 As such,
these online forces would find police officers abusing their
authority
especially repulsive. They would be right to think so. But what they
are capable of
is distinct from what the average individual is capable of:
systematic
cyber ruination. During the Occupy Wall Street (OWS) protests in
the fall of
2011, a police officer pepper sprayed a crowd of people in New York
City, allegedly
without cause, and Anonymous issued a call to arms.189 Pepper
spraying
protesters, without just cause, is categorically bad. But rather than take
the video to
the NYPD to have the officer disciplined (or in addition to doing
so), the
recorder posted the video to the Internet. A blogger blew up an image of
the officer’s
badge and disseminated his name; possible phone numbers and
addresses were
then linked to him on a document posted online; and a list of
potential family
members was included.190 According to Adrian Chen, Anony-
182. Ravi
Somaiya, Hackers Shut Down
Government Sites, N.Y. TIMES,
Feb. 2, 2011, http://
www.nytimes.com/2011/02/03/world/middleeast/03hackers.html.
183. One of the
symbols embraced by the group is a Guy Fawkes mask, as popularized in the film V
for Vendetta, as it represents the power of righteous
individuals who engaged in fighting tyranny. See
Michael Stone, November 5: Anonymous Celebrates Guy Fawkes
Day, EXAMINER.COM, Nov. 4, 2011,
http://www.examiner.com/anonymous-in-national/November-5-anonymous-celebrates-guy-fawkes-day.
184. Somaiya, supra note 182.
185. See Edecio
Martinez, Girl Throws Puppies in
River in Video, 4chan Users on the Hunt,
CBS
NEWS (Aug. 31,
2010, 10:50 AM), http://www.cbsnews.com/8301-504083_162-20015154-504083.html.
186. This
raises additional questions about the proliferation of personal information on
the Internet
and the wisdom
of such information accessibility.
187. It should
be noted that one of the “rules” on 4chan, which is explicitly applied to the
“Random”
(or “/b/”)
message board, is Rule 4: “The posting of personal information or calls to
invasion is
prohibited.” See Rules, supra note 181.
188. See Stone,
supra note 183.
189. Adrian
Chen, Anonymous Leaks Personal
Details of Cop Who Pepper-Sprayed Wall Street
Protesters, GAWKER (Sept. 26, 2011, 2:07 PM),
http://gawker.com/5843908/anonymous-leaks-personaldetails-
of-cop-who-pepper_sprayed-wall-street-protesters.
190. Id.
1426 THE GEORGETOWN
LAW JOURNAL [Vol. 100:1399
mous’ favored
harassment tactic is the classic onslaught of pizza deliveries,
which is fairly
harmless at base (if you ignore the costs incurred).191 But there is
potential for
so much more harm, which, in this instance, included potential
harm to innocent
family members.192
Or, such a
police officer could be granted the dubious honor of becoming a
meme himself.
The OWS protests in Berkeley resulted in students being
restrained and
subdued before the now infamous “casually pepper spraying
cop” strolled down
the line of protestors and assaulted their eyes with chemicals.
193 Reddit,
another online community, maintains a repository of images in
which a photo
of the offending officer has been “photoshopped” into various
settings.194 Certainly
there is humor in photoshopping the cop so that he is
pepper spraying
George Washington crossing the Delaware, but a version that
features the
cop inserted into the aftermath of the Kent State Massacre illustrates
the sobriety of
the subject. Abuse of authority is not to be taken lightly,
but turning a
recording or a photograph into a meme like this one, while
couched in
comedy, is actually deadly serious. This officer, whose identity and
personal
information is available online, has been memorialized as a terrible
human being.
Which yes, he was, in that particular engagement. But, the
figurative
Internet tribunal has reached a decision. Though the verdict is just,
perhaps the
sentence is not. On the other hand, the proliferation of the meme
may have raised
more awareness of abuse of authority throughout the OWS
season than any
news report prior, and for that, it should be valued. In short,
there is a
value conflict.
Anyone with a
slightly advanced understanding of the Internet, which is a
rapidly growing
number of people, could engage in targeted harassment if so
inclined. The
officers who abused Rodney King should be spoken of with
derision from
now on, but should those officers have had their lives literally
ruined beyond
what the courts of law could do to them? Or is “ruined” an
overstatement?
The video of the woman in Massachusetts may be permanently
accessible
online, but the number of views each day should decrease dramatically.
Casually Pepper
Spraying Cop has been immortalized as a punch line, not
as a pariah.
The attention span of the Internet collective as a whole is not great.
Is a little
public humiliation and harassment just part of the modern-day
conception of
privacy given the contract the world has figuratively signed with
the Internet?
191. Id.
192. Indeed, several
of the comments to the post applaud the uploading of the officer’s information
but condemn the
posting of family member information. Id.
193. Xeni
Jardin, The Pepper-Spraying Cop
Gets Photoshop Justice, THE GUARDIAN,
Nov. 23, 2011,
http://www.guardian.co.uk/commentisfree/2011/nov/23/pepper-spraying-cop-photoshop-justice.
194. Casually Pepper Spray Everything Cop, REDDIT,
http://www.reddit.com/r/AdviceAnimals/
comments/mkja8/casually_pepper_spray_everything_cop/
(last visited Mar. 3, 2012).
2012] SURVEILLANCE
& POLICE MISCONDUCT 1427
C. PRIVACY IN
THE INTERNET AGE
Mark
Zuckerberg, founder of Facebook, has declared, in so many words, that
privacy is
dead.195 Noting that privacy “ha[s] just evolved over time,” Zuckerberg
believes that
people have acquired a desire to put their information out into
the cyber ether
for others to partake of, and that people, in the process, have lost
a need for
barriers to access to that information.196 Modern legal theories of
privacy can be
attributed to scholarship of the late nineteenth century.197 Warren
and Brandeis
could hardly have begun to comprehend the prescience of their
argument that
“[i]nstantaneous photographs and newspaper enterprise have
invaded the
sacred precincts of private and domestic life; and numerous mechanical
devices
threaten to make good the prediction that ‘what is whispered in the
closet shall be
proclaimed from the house-tops.’”198 Simply replace “instantaneous
photographs”
and “newspaper enterprise” with “uploaded video footage”
and “blogging platforms
and social media,” and the problems of the past
become those of
the present. The scholars contended that although the common
law had
vindicated the rights of individuals to control distribution of their
private
writings and thoughts, this was not, as had been understood, a notion of
property rights
but of a right distinctly based in the concept of an “inviolate
personality.”199
Is that concept still viable given that Zuckerberg’s notion of the
death of
privacy is profoundly linked to the ability of individuals to craft online
“personalities”
viewable to anyone?
For purposes of
the discussion of police misconduct, it may be unnecessary to
consider
whether privacy law should apply, as Warren and Brandeis made clear
that “[t]he
right to privacy does not prohibit any publication of matter which is
of public or
general interest.”200 Abuses of authority by law enforcement
constitute
matters of public or general interest. But the permanence of the
publication in
digital form and the potential for general abuse stemming from
the publication
may necessitate greater protection. Josh Blackman has written
not of
surveillance or sousveillance but of what he terms “omniveillance.”201
Prompted by the
advent of Google Street View, a venture that involves roving
cameras
literally capturing images of public streets and posting them online
without
motivation or context, Blackman argues that, where “an image captured
of a person
engaging in an activity may be easily taken out of context,” and
195. See Emma
Barnett, Facebook’s Mark Zuckerberg
Says Privacy Is No Longer a ‘Social Norm,’
TELEGRAPH (LONDON),
(Jan. 11, 2010), http://www.telegraph.co.uk/technology/facebook/6966628/
Facebooks-Mark-Zuckerberg-says-privacy-is-no-longer-a-social-norm.html.
196. Id.
197. See, e.g., Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193
(1890).
198. Id. at
195 (quoting Luke 12:3).
199. Id. at
205.
200. Id. at
214.
201. Josh
Blackman, Omniveillance, Google,
Privacy in Public, and the Right to Your Digital
Identity: A
Tort for Recording and Disseminating an Individual’s Image over the Internet, 49 SANTA
CLARA L. REV.
313, 314 (2009).
1428 THE GEORGETOWN
LAW JOURNAL [Vol. 100:1399
where an
opportunity to provide a meaningful explanation of the context is
absent given
instantaneous upload to the Internet, threats to reputation are
real.202 He
concedes that “[t]he advancement of technology may make the ‘right
to be let
alone,’” so beloved to Brandeis, “a casualty of the information
revolution.”203
In the absence of meaningful privacy protections at present, he
posits a tort
of a violation of a person’s “right to [his] digital identity.”204 The
proposed tort
has four components: (1) a reasonable expectation of privacy not
to be recorded,
(2) an “offensive to a reasonable person” standard (as opposed
to the tort of
public disclosure of private fact’s highly
offensive standard), (3)
wide
transference or dissemination through an electronic medium, and (4)
non-newsworthy
material.205 If allowing for varying common law developments
by states,206 this
proposed tort could strike the proper balance between
privacy and the
free speech of posting information online.207 At the very least, it
provides an
avenue for everyday citizens to recover damages for recordings of
them made and disseminated
without their consent.
With this
proposed tort in mind, the criminalization of recordings made
without
all-party consent seems superfluous. However, law enforcement officers
would still
have an incentive to avoid electronic capture because their activities
would be
considered newsworthy. Their protection may lie in cyber-stalking
statutes.208 Cyber
stalking occurs when someone is “threatened or harassed
online.”209 As
Neal Katyal notes, harassment that transpires initially online may
often escalate
into harassment that occurs in “realspace.”210 This escalation can
be seen as
progressing from the call to arms in the comments section of a video
post to the
ensuing targeted harassment via phone calls, mailings, and even
realspace
happenings. That was the case with the racist woman in Massachusetts.
211 The
difficulty in curbing such behavior inevitably lies in individuals’
ability to
engage anonymously in the initial cyber harassment, as technologically
proficient
persons can easily do with today’s online and hardware resources.
Perhaps online
smear campaigns, then, can be accepted, if directed at
law-enforcement
officers who engaged in reprehensible conduct in the course of
their duties,
and if actual physical and tangible harassment can be prosecuted.
If these smear
campaigns are to be discouraged, the answer may lie in
202. Id. at
342–44.
203. Id. at
350; see Olmstead
v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)
(“[The Framers]
conferred, as against the government, the right to be let alone—the most
comprehensive
of rights and
the right most valued by civilized men.”).
204. Blackman, supra note 201, at 354.
205. Id. at
354–55.
206. For
instance, Blackman suggests that California, with its rampant celebrity
happenings, could
impose lesser
standards for newsworthiness while comparatively more provincial Iowa could
have
higher
standards (except during primary season). Id. at 389–90.
207. Id. at
391.
208. See, e.g., 47 U.S.C. § 223(a)(1)(C) (2006) (criminalizing harassing
telecommunications).
209. Neal Kumar
Katyal, Criminal Law in Cyberspace, 149 U. PA. L. REV. 1003, 1034 (2001).
210. Id. at
1036.
211. See supra notes 170–77 and accompanying text.
2012] SURVEILLANCE
& POLICE MISCONDUCT 1429
confronting the
social norms of cyberspace: “Because people can change their
identities at
will and are not necessarily who they say they are, it is quite
difficult to
hold them accountable for their past actions on the net.”212 Indeed, in
an age of cyber
anonymity, an identity may not even be necessary to engage in
Internet
vigilantism. The relative absence of norms and the possibility of
anonymity in
cyberspace (as opposed to realspace, where individuals are more
readily held
accountable for their actions) produces a space in which people can
get away with
things they would not get away with in real life, either because of
legal or
conscience-based restraints.213 As incidents of reputation- and lifeharming
online
publication increase, the public may become more cognizant of
the resulting
harms. Although more and more individuals may be harmed
through
Internet notoriety in the future, a normative framework likely will
develop. At one
point, the public will decide that enough is enough. Zuckerberg
may wield
Facebook as proof that privacy is dead, but in the grand scheme,
Facebook is
new.214 When it becomes apparent that online activity may be
disproportionately
shielded from public view as opposed to realspace activity,
the role of
online publication may be reevaluated. Alternatively, and troublingly,
individuals may
decide to devote more attention to their online selves than their
actual selves.
V. PROCESSING
THE NEGATIVES: HOW TO RESTORE THE USE AND AVOID THE ABUSE
OF RECORDINGS
OF POLICE MISCONDUCT
The use of
video recordings to bring light to police misconduct is an essential
weapon in the
fight against abuse of authority, but the potential for abuse of a
different kind
once the recordings reach the Internet highlights a variant of the
harm that
surveillance law was meant to curtail. In an age when public protests
212. Katyal, supra note 209, at 1107.
213. See Philip
A.Wells, Shrinking the Internet, 5 N.Y.U. J. L. & LIBERTY 531, 534–37
(2010).
214. The
relative newness of Facebook has prompted a number of theories regarding its
influence on
the development
of social networking. Wells argues that Facebook actually represents the exact
kind of
innovation in
cyber activity that will produce greater cyber norms. Because Facebook develops
the
miniature
community through the facilitation of social networking and centers on the idea
that a
person’s online
identity mirrors his realspace identity, a social code is established. See id. at 572–74.
Zuckerberg
would likely counter that online communities are the exact kind of innovation
that will
destroy privacy
needs, but a different concept of privacy may emerge, which is not as foreign
to a
traditional
notion of privacy as Zuckerberg would think. In fact, to this end, movement is
underway to
curb the
aforementioned problem of anonymous commenters by requiring that a comment be
tied to a
Facebook
account. See MG Siegler, Facebook Has Been Refining Their Troll-Slaying Comment System
for Months;
Finally Ready to Roll?, TECHCRUNCH
(Jan. 31, 2011), http://techcrunch.com/2011/01/31/
facebook-comments-2/.
For an analogy, see Lior Jacob Strahilevitz, A Social Networks Theory of
Privacy, 72 U. CHI. L. REV. 919 (2005) (arguing that
individual expectations of privacy are shaped by
the “network”
in which one communicates information, regardless of the size of that network).
If a
person has many
Facebook friends but restricts access to a certain subset of “friends,” he has
manifested an
expectation in information released to those friends remaining private
(Facebook’s
contracts with
outside corporate parties notwithstanding). Under this theory, privacy can
adapt to the
Internet.
1430 THE GEORGETOWN
LAW JOURNAL [Vol. 100:1399
are growing in
frequency,215 and everyday encounters between police and the
citizenry
persist, the need for accountability in law enforcement is paramount.
Simultaneously,
the digital age is numbing society to the equally disturbing
harms that can
result from posting video online. Balance must be restored:
surveillance
law should allow police recordings while law and society should
adopt
understandings of privacy that conform to the complexities of the Internet.
Going forward,
states such as Massachusetts and Illinois must stop prosecuting
individuals for
recording police officers engaged in police misconduct. The
privacy
concerns embodied in surveillance statutes do not encompass a public
official’s
abuse of authority or use of excessive force, regardless of any objective
(or subjective)
belief that the misconduct would remain unknown. However,
so long as a
court like that in Hyde continues to read a statute without
regard for
common-sense limitations on the literal meaning of the text,216 these
prosecutions
may persist.217A potential reform involves the amendment of the
statutes.
States like Illinois and Massachusetts have affirmatively rejected a
need for a reasonable
expectation of privacy, arguably in the interest of greater
privacy
protection, so that must be worked around.218 Ironically, given the
state’s
attempted prosecutions of individuals who recorded police officers,
Illinois law
may provide a template for an answer. Illinois’ surveillance law
provides an
exception for recordings made by a party to a conversation if the
party has a
“reasonable suspicion that another party to the conversation is
committing, is
about to commit, or has committed a criminal offense against the
person or a
member of his or her immediate household, and there is reason to
believe that
evidence of the criminal offense may be obtained by the recording.”
219 An Illinois
appellate court has only analyzed this provision on one
occasion, in
the context of a possible future crime, but found it insufficiently
imminent to
qualify for the exception.220 What if, in addition to criminal
offenses, the
statute allowed an exception for recordings of suspected constitutional
rights
violations? This would cover recording of what is perceived to be
215. The
previously referenced incidents in the Middle East, the United Kingdom, and on
Wall
Street
highlight this trend. See Chen, supra
note 189; Rohrer, supra note 131; Somaiya, supra
note 182.
216. See supra section II.B. The Illinois legislature almost certainly could not
have desired the
prosecution of
Tiawanda Moore for using a tape recorder to catch corrupt cops in the act of
dissuading
her from filing
a sexual harassment complaint. See
supra notes 87–89 and
accompanying text.
217. The real
question may be why prosecutors, who have the discretion to prosecute, persist
in
filing charges
and seeking indictments against the individuals who captured the officers’
wrongdoings.
A judge’s hands
are far more tied in interpreting a statute than a prosecutor’s are in
enforcing it.
218. For states
that do still recognize the need for a reasonable expectation of privacy, the
easy
answer would be
that police officers cannot have a reasonable expectation of privacy while on
duty. See
State v. Flora, 845 P.2d 1355, 1357 (Wash. Ct. App. 1992).
219. 720 ILL. COMP.
STAT. 5 / 14-3(i) (2011). This provision was the basis of Tiawanda Moore’s
successful
defense in her jury trial, in which she argued that the internal affairs
investigators were
committing
official misconduct by seeking to dissuade her from filing a complaint. See Meisner
&
Haggerty, supra note 89.
220. See People
v. Nestrock, 735 N.E.2d 1101, 1108 (Ill. App. Ct. 2000).
2012] SURVEILLANCE
& POLICE MISCONDUCT 1431
police
brutality. But what of Simon Glik and George Holliday, both of whom
made recordings
in response to perceived police brutality toward others? The
Illinois
exception also applies to perceived criminal offenses against “a member
of [the recorder’s]
immediate household,” but why is the statute so limited? If a
person is
involved in a communication enough to know that a hate crime, for
instance, is
being committed against a third party, allowing that person to record
the altercation
makes sense regardless of whether the third party is a family
member. Why not
expand the statutory exception to criminal offenses, regardless
of whom they
are directed against? Better yet, in keeping with the above
line of
reasoning, perceived constitutional rights violations should be recorded
regardless of
whose rights are being violated.
But the average
person does not know when his constitutional rights are
being violated.
Further, if the statute speaks to constitutional rights broadly
construed, then
everything from the First to the Fourteenth Amendment could
provide grounds
for a potential recording. That would be problematic. It may be
unavoidable to
insert some sort of language involving constitutional rights
violations
committed by public officials. Montana’s surveillance statute already
provides an
exception for public officials who make the recordings,221 so why
not restore the
balance and allow for recording of public officials perceived to
be engaging in
constitutional rights violations? So long as there is a caveat that
the recording
can only transpire if the officials are acting in the course of their
official
duties, then use of the provision would be limited to appropriate
circumstances.222
If states wish to maintain an all-party consent approach to
surveillance
law, an exception for recordings made of perceived constitutional
rights
violations made by public officials engaged in the course of their official
duties would
cure the problem of prosecuting individuals for recording instances
of police
misconduct.
Given that so
much is contingent on what is perceived
to be a constitutional
rights
violation, however, there is potential that the more anti-authoritarian
segments of the
populace would be too quick to jump the gun and engage in
unnecessary
surveillance of law enforcement. But would this be a bad thing?
The arguments
for sousveillance demonstrate that a police force subject to
constant
scrutiny will necessarily increase internal monitoring of its behaviors
and legal
compliance.223 Sousveillance can comparably flourish in one-party
consent states
without legal barrier, but can it productively exist in all-party
consent states?
Further, is it even desirable to encourage sousveillance that
involves
perpetually operating cameras? While constant observation would
have an
influential impact on police behavior, it would also likely result in
recordings of
third-party, private individuals who may not have consented or
221. MT. CODE ANN.
§ 45-8-213(1)(c)(i) (2011).
222.
Admittedly, this tactic is comparable to the “no reasonable expectation of
privacy when
engaging in
official duties” approach, but it is still distinct, chiefly because of
statutory codification and
its accordant
clarity.
223. See supra notes 138–40 and accompanying text.
1432 THE GEORGETOWN
LAW JOURNAL [Vol. 100:1399
may not have
even been part of the encounter. If a camera is constantly wielded,
it will not be
wielded as sharply and distinctly. Better is the targeted use of
cellphone
cameras, handheld tape recorders, or other devices that require the
user point the
lens or microphone and press “record.” Such a practice would
avoid the
masses replacing Google’s street-view omniveillance224 while maintaining
an incentive
for police officers not to act unprofessionally or unconstitutionally,
for they may be
caught in the act.
The remaining
obstacle is avoiding misuse of recordings of police misconduct.
Publicizing
misconduct is not bad. The publication fosters dialogue,
appropriately
shames abusive law-enforcement officers, and encourages reform.
But, as stated
before, once on the Internet, these recordings may exist in
perpetuity.
Unfortunately, this result cannot be avoided so long as the Internet
functions the
way that it does. If society can accept that a ticket for driving
while under the
influence acquired during college can forever alter his career
and
reputational prospects, then it only seems fair that an instance of police
misconduct
would do the same.225 There is also the lurking concern that
recordings
could be selectively edited to humiliate or disparage an individual or
to convey a
particularized (and adulterated) message.226 To reiterate, even if the
courts begin
adopting appropriate screening mechanisms for video evidence,
evidence
submitted to the court of public judgment on the Internet will not
likely undergo
close scrutiny. Criminalizing selective editing of videos for the
purpose of
humiliation would likely produce much subjectivity and prove too
difficult to
enforce, but civil actions would be a viable recourse. Blackman’s
proposed right
to a digital identity and an accordant tort action could be
workable,227 but
more importantly, there should be a discussion of better
adapting the
common law approaches to privacy to the Internet age. Although
Zuckerberg was
wrong when he flatly said that privacy is no longer relevant, it
is changing. If
the Internet is to contribute to the dissemination of information
in a beneficial
way, including recordings of police misconduct, then privacy law
must also
expand to address the resulting concerns of reputational harms.
As far as the
actions of groups like 4chan and Anonymous are concerned, it
should be
emphasized that, by and large, these collectives perform a valuable
service. In
their own unique way, these engaged individuals shed light on issues
that may have
gone unnoticed. The publication of the information is not the
problem; the
use of that information to engage in harassment is. The same may
224. See Blackman,
supra note 201, at 313–14.
225. From a
purely moral perspective, law-enforcement officers should be held to a higher
standard.
The
consequences for a breach of the public trust should be great, for the
maintenance of legitimate
authority
depends on it.
226. A recent
example, though not in the law-enforcement context, would be the publication of
former
Department of Agriculture official Shirley Sherrod’s videotaped remarks. The
footage depicted
her as making
racist remarks but was presented entirely out of its nonracist context. For
further details,
see Sheryl Gay
Stolberg, Shaila Dewan & Brian Stelter, With Apology, Fired Official Is Offered a New
Job, N.Y. TIMES, July 21, 2010, at A15.
227. See Blackman,
supra note 201, at 354–55.
2012] SURVEILLANCE
& POLICE MISCONDUCT 1433
not apply to
Anonymous, but 4chan affirmatively condemns invasions of privacy.
228 Yet there
are computer-savvy individuals who do not wish to abide by
an ethic. Such
an unethical approach, which leads to cyber harassment, cyber
stalking, or
even realspace harassment or stalking, is a result of the diminished
conscience of a
person freed by the anonymity of the Internet. As Katyal notes,
law enforcement
has been struggling for over a decade to find a method of
effectively
countering cyber crime.229 But at least with regard to the targeted
harassment of
individuals, as opposed to international corporations, megachurches,
or dictatorial
governments, there is hope. Through continued experience
with the
Internet and the increasing numbers of individuals who “did not
ask for this,”
social norms will organically develop to curb comfort with
harming others
through digital means.230
The combination
of affirmative statutory reform and tort development with
gradual
cultural change should be able to produce a framework in which
individuals can
hold their public servants accountable without harshly derogating
privacy
concerns. Then law enforcement can be held to an appropriate
standard, one
neither too lax nor too harmful.
CONCLUSION
There is a
definite good in the recording of police misconduct, and there is a
definite good
in the publication of those recordings online for all to access.
First, these
recordings contribute a valuable piece to the social dialogue regarding
the activity of
those who are meant to protect the masses. Second, these
recordings
provide appropriate pressure to the police to engage in best practices
and to curtail
misconduct. Third, potential for cyber abuse of the subjects of
these videos
can be successfully minimized through a combination of civil
actions and
social adjustments. Therefore, all-party consent statutes should not
be applied to
individuals who make recordings of police misconduct. Although
it is troubling
to ponder the damage that can occur from online publication,
police
brutality is the type of threat to legitimate government that some harm to
privacy of
public officials may justify so long as it is relatively contained.
Again, the age
of social media and blogging is still relatively young. While it
would be hard
to argue that the trend toward greater Internet activity will
reverse, it
would be premature to argue that privacy has lost its cachet altogether.
The public may
yet one day decide to impose greater restraint on itself in
laughing at or
heaping torment on hapless individuals online when the number
of those
individuals grows to encompass acquaintances or selves. It is simply
too early to
declare whether the public is prepared to forego an objective
expectation of
privacy in online identity. In the meantime, the profound power
of the Internet
should be used to the utmost to minimize abuse of authority.
228. See Rules, supra note 181.
229. See Katyal,
supra note 209, at 1004–05.
230. See Saturday Night Live: “I Didn’t Ask for
This,”
supra note 150.
1434 THE GEORGETOWN
LAW JOURNAL [Vol. 100:1399
Technology has
given the public a powerful tool against oppression. It must be
wielded
effectively and justly.
George Holliday
forever changed the nature of governmental authority in
America merely
by picking up a camera.Without even using a flash, he shined a
light on the
ugly existence of police misconduct. Undoubtedly, law enforcement
occupies a
crucial and valuable role in any society, but the state power must be
kept in check
by a vigilant citizenry. James Flora, Simon Glik, and Tiawanda
Moore attempted
to advance that cause. In the process, they encountered
counterproductive,
unintuitive, and harmful legal obstacles. The possibility that
others in the
future may face similar unconscionable legal retaliations cannot
and should not
rest well with the rest of the populace, including the vast
majority of the
praiseworthy police force, which relies on those actions to
uphold the
ideal of respectable and accountable law enforcement. Simultaneously,
the potential
for abuse of the methods of holding the authorities to the
proper
standards cannot diminish the worth of those practices of recording and
publication.
For every substantial benefit that technology affords, a reactionary
harm lurks
underneath. The faster that both law and society adapt to blunt those
ills, the
better that equally important privacy concerns will fare. Only then can
responsible law enforcement and diligent
citizens coexist beneficially.
