Bad footage

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 LAW JOURNAL [Vol. 100:1399

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).

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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;

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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.

1412 THE GEORGETOWN LAW JOURNAL [Vol. 100:1399

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 LAW JOURNAL [Vol. 100:1399

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.

1418 THE GEORGETOWN LAW JOURNAL [Vol. 100:1399

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 LAW JOURNAL [Vol. 100:1399

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 LAW JOURNAL [Vol. 100:1399

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.

1424 THE GEORGETOWN LAW JOURNAL [Vol. 100:1399

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.

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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.