Boston
admits it: Cell phone photography is not a crime
When
Massachusetts charged Simon Glik with using a cell phone to film an arrest,
prosecutors probably didn't realize they'd set a key First Amendment precedent
-- and cost taxpayers $170,000.
The City of Boston tacitly acknowledged today
that arresting a man for recording a police officer in public may not exactly
have been the wisest -- or most constitutional -- choice.
That
acknowledgement comes in the form of a $170,000 payment to Simon Glik, a Boston
attorney who was prosecuted under criminal wiretap laws for using his cell phone
to record police arresting someone on the Boston Common. They prosecuted the
wrong fellow: Glik himself specializes in criminal defense.
A
spokeswoman for the Boston Police Department told CNET this afternoon that the
city has taken steps to ensure arrests-for-recording don't happen again. That
includes "conducting training sessions for all department officers
regarding the state wiretap statute," including updating the curriculum at
the police academy, and publishing multiple training bulletins for officers,
Elaine Driscoll said.
Even
though Boston has learned an expensive lesson in constitutional law, other
police departments have not: As cameras have become embedded in more consumer
electronic devices, more Americans are finding themselves in legal jeopardy for
digital snapshotting that's likely protected by the First Amendment. Embedded
eyeglasses cams like the ones from ZionEyez (available for pre-order for $200)
promise to accelerate developments.
The
list of camera-shy police departments is a lengthy one. Seattle police arrested
a man who photographed an arrest. So did Minnesota police. And Miami police.
And Baltimore police. And Richmond police. And Rochester police. And so on.
In
January, the National Press Photographers Association labeled the prosecutions
an "ongoing assault on the right to photograph [and] record in
public." This trend, accelerated by citizen-videography related to the
Occupy protests, is one reason the United States dropped so precipitously, from
20th place to 47th, in the most recent rankings of media freedom compiled by
the Reporters Without Borders advocacy group. It's even led to a blog titled
Photography is Not a Crime, written by Carlos Miller, who can claim to have
been arrested three times for photographing cops.
From
law enforcement's perspective, the technological advance that gave rise to
low-cost video recording and even lower-cost Internet distribution can cause
some problems. It can prompt retaliation against officers. It can reveal the
identities of undercover cops or confidential informants.
But
cameras can also highlight police wrongdoing -- as the death of Oscar Grant and
the beating of Rodney King demonstrated -- and provide a useful check on law
enforcement's version of events. More to the point, "wiretap" laws
weren't intended to apply to public confrontations, and if they did, they would
likely run afoul of the First Amendment's right to freedom of speech.
"Updates
in technology frequently present new circumstances for officers," says
Driscoll, the Boston police spokeswoman. "We strive to keep our officers
informed and updated to assist them in addressing new issues."
Adding
extra impetus to Boston's training regimen was a ruling last August in the Glik
case from the U.S. Court of Appeals for the First Circuit. Glik filed suit
after being charged with violation of Massachusetts' wiretap statute,
disturbing the peace, and aiding in the escape of a prisoner (the original
fellow being arrested by police, who did not actually escape).
Glik
said he made the recording because he believed excessive force had been used
during the arrest. Eventually, prosecutors dismissed the charge of aiding in
the escape. Only after the case went to court did they abandon the other
charges; Glik responded filed a civil rights lawsuit alleging, among other
things, First Amendment violations.
The
First Circuit sided with Glik, saying that "numerous circuit and district
courts" have reached similar conclusions and that the First Amendment's
newsgathering protections apply beyond traditional media organizations:
The
filming of government officials engaged in their duties in a public place,
including police officers performing their responsibilities, fits comfortably
within these (First Amendment) principles... This is particularly true of law
enforcement officials, who are granted substantial discretion that may be
misused to deprive individuals of their liberties... Such peaceful recording of
an arrest in a public space that does not interfere with the police officers'
performance of their duties is not reasonably subject to limitation.
If
the judges had ended there, that would have been a sweeping win for Glik and
his attorneys, including the American Civil Liberties Union of Massachusetts,
which helped him file the civil rights lawsuit. But the First Circuit went
further, saying the police should have known Glik's arrest was illegal -- and
therefore the cops could be held liable for damages.
"The
law had been clear for years that openly recording a video is not a
crime," Glik said. "It's sad that it takes so much for police to
learn the laws they were supposed to know in the first place. I hope Boston
police officers will never again arrest someone for openly recording their
public actions."
Boston
probably won't. But the First Circuit's ruling has the force of law only in
Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico.
Which
means the legal skirmishing is likely to continue. A likely future point of
contention: whether recording police in a public park like the Boston Common is
the same as recording them during traffic stops.
That's
led to arrests including that of Anthony Graber, a staff sergeant in the
Maryland Air National Guard who was pulled over on his motorcycle by a
gun-waving fellow lacking a uniform who did not immediately identify himself as
police. (The case was thrown out, according to a report by the Baltimore Sun.)
Earlier this month, a Temple University photojournalism student was arrested
and charged with a felony for taking photos of a routine traffic stop.
The
Third Circuit, which includes Pennsylvania, New Jersey, and Delaware, has said
a traffic stop is an "inherently dangerous situation" and the right
to film it is not clearly established. Even the First Circuit hinted that that
they may view it differently: "A traffic stop is worlds apart from an
arrest on the Boston Common."