Despite the welcome
7th Circuit decision in ACLU v. Alvarez on May 8 that directed a federal
district court to enjoin the application of the Illinois eavesdropping statute
to an ACLU police accountability program, citizens around the country remain
vulnerable to arrest and harassment for recording audio and video of police in
public spaces. Cases like Glik v. Cunniffe and Alvarez indicate that the tides
are changing in favor of First Amendment protections of police oversight and,
in Illinois, at least two county court judges have also found the Illinois
eavesdropping statute unconstitutional.
Some, like the ACLU, have launched initiatives to publicly record audio
and video of police conduct, and the Alvarez case was pursued by the ACLU
specifically to allow ALCU staff to legally record police without fear of
reprisal under the eavesdropping statute.
(Interestingly, this decision comes just as Chicago is bracing itself
for violent protests during the NATO summit this weekend.)
Along these lines, many individuals have been using a suite
of cell phone apps developed by open government activist Rich Jones to record
audio and video of encounters with law enforcement officers. Jones launched the OpenWatch.net project in
January 2011, which now boasts three smartphone apps designed to secretly
record citizen encounters with police officers.
Jones has also produced a version of his software for the ACLU of New
Jersey to support their police accountability programs. In a recent interview
with Jones, he told me that he launched the project to supply technology
"to provide documentary evidence of uses and abuses of power… [as] part of
a new wave of document-based journalism."
"If we're going to lose all of our privacy," Jones
says, "then we're damn well going to get some transparency."
In practice, after downloading the OpenWatch or CopRecorder
app to a cell phone, a user just needs to open the app and press a button to
record audio (in the case of CopRecorder) or both audio and video (in the case
of OpenWatch) through the camera and microphone built into their phone. After hitting "record," the app
disappears from view to hide the fact that the user is recording. And when the user reopens the app to end the
recording, they are asked whether they would like to upload the recording to
OpenWatch’s public database.
Jones says he regularly receives thousands of uploads from
app users, and currently receives about one upload worthy of posting online
every three days – although, working alone, Jones has a large backlog and is
currently seeking funding to allow him to filter through the data he is
receiving. Many of the recordings are traffic stops, and most document
perfectly harmless police/citizen interactions.
But Jones claims that other recordings he has received document evidence
of "civil rights abuses at DUI checkpoints in southern California."
Jones also reports receiving emails from lawyers and police
who are looking to use the recordings in trials.
"The surprising thing is how many police officers are
using the application," Jones says. "They use it to record their
encounters with citizens so they can use it as evidence in court, or to expose
internal procedure (cover their own asses)."
"Some cops have even emailed asking for help getting
the media off of the phone, and one cop sent an extremely upset letter after
realizing who we were and that he just sent us a confidential recording,"
he adds.
Liability for Using OpenWatch?
But despite some use of the apps from within the law
enforcement community, Jones has also received very angry emails over the
project and has been frustrated at his inability to find pro bono counsel
willing to provide advice about the potential legal ramifications of the project
moving forward.
One area of concern is the liability of users who make
recordings with Jones' apps. While Jones was thrilled by the Glik decision, it
is only binding authority in a handful of New England states and Puerto Rico.
Thus, users of the OpenWatch apps remain potentially liable for violations of
state wiretapping or eavesdropping statutes elsewhere. Indeed, the courts in both Glik and Alvarez
dealt directly with overt recording activities, and the fact that the OpenWatch
app allows for covert surveillance (by hiding the app while recording is in
progress) might be outside the scope of the decisions in those two cases.
For instance, in Massachusetts and the eleven other states
that have enacted "all party consent" wiretap laws, the use of the
OpenWatch apps to record statements made by police potentially opens an
individual up to criminal and/or civil liability for recording conversations
without the consent (or at least knowledge) of all parties to the conversation.
This risk is compounded in states like Massachusetts where the statutory
prohibition extends to any secret audio recording, regardless of whether the
conversation is occurring in a public space where there may be no reasonable
expectation that the conversation is actually private. (In Glik, the recording at issue was found
not to be secret, as Glik's phone was held up in plain view of the officers and
they were aware that he was likely recording them.) Similarly, the Illinois
eavesdropping law at issue in Alvarez prohibits the recording of any
conversation without consent of all parties "regardless of whether one or
more of the parties intended their communication to be of a private nature
under circumstances justifying that expectation." (See the Illinois law,
or a great discussion by CMLP’s Jeffrey Hermes).
This doesn't appear however to be an issue in the majority
of states that have enacted one-party consent laws – because the consent of any
party to a conversation, including the person making the recording, makes the
recording lawful. But an individual covertly recording a conversation to which
he or she is clearly not a party likely falls outside the protections of the
various state eavesdropping laws.
These laws (and others) raise serious issues for potential
users of the OpenWatch apps, and indeed OpenWatch itself, if the apps are used
to covertly or secretly record police action as encouraged by the OpenWatch
Project. Based on the current state of the law as evidenced by recent court
decisions, it is important for potential or actual users of the system to
understand their own state laws (and the potential fallout) before deciding to
begin using such an application – especially when recording covertly – as the
risk of arrest or harassment continues to loom large in a number of
states.
Liability for Hosting?
Another area of legal concern for OpenWatch is the project's
own liability for users' actions. In particular, it is unclear whether the
OpenWatch project would qualify for safe harbor under Section 230 of the Communications
Decency Act (47 U.S.C. 230). That
section provides immunity to providers of an “interactive computer service”
that publishes information provided by third parties. Section (c)(1) states that, "No provider
or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content
provider."
An “interactive computer service” is defined, in section
(f)(2), as “any information service, system, or access software provider that provides
or enables computer access by multiple users to a computer server….” This definition would appear to cover the
OpenWatch system, but the Act also includes a number of exceptions and does not
protect against liability for content that OpenWatch creates or develops
itself.
It is not entirely clear whether the OpenWatch Project's
solicitation for users to upload recordings that potentially infringe various
state laws, and the resulting decisions made in the process of filtering
relevant files from others prior to posting on the project's website, could
make the project a "co-provider" of the recordings rather than a
passive host.
What OpenWatch's Future Holds
When asked Jones about the future of OpenWatch, he says “We
want to continue to produce technology which confronts the current notions of
power, privacy and surveillance. We'd like to focus more on the developing
world, where corruption is much higher (see our PTSN based Voice-Dropbox
project), on disposable surveillance hardware, streaming technology, education
(see our side project, Lecture Leaks) and expanding our user base."
"We're also working to produce a federated system of
citizen media notary servers for verifying citizen media with the National
Lawyers Guild," he adds. The servers would capture, verify, and store
recordings being made during protests in realtime for litigation purposes.
"Beyond that, just more data, data, data."
The utilization of
OpenWatch apps by the ACLU in their programs promoting police accountability
and the right of citizens to record police conduct in public spaces, as well as
the newly sanctioned ACLU program in Illinois (post Alvarez), indicate a
positive shift towards stronger First Amendment rights of American citizens to
work for government transparency and accountability. Certainly, the OpenWatch Project has taken an
aggressive stance on the right of citizens to demand transparency from their
government and to protect First Amendment rights of citizens to record public
conduct of government agents. Efforts
such as their recording apps and their collaborations with the ACLU and NLG are
definitely pushing boundaries. But while
the wind after Glik and Alvarez appears to be blowing in favor of the right to
record police in public, the battle is far from won.
Bryce Newell is
currently a Ph.D. student at the University of Washington's Information School
and a Graduate Fellow of the Comparative Law & Society Studies (CLASS)
Center. He is also a member of the California State Bar (inactive) and is
currently producing, directing, and editing a documentary film about
humanitarian response to migrant deaths along the U.S.-Mexico border