The Freeman has an interesting look into various states’ efforts to make illegal the recording of police activity. In Illinois, Massachusetts, and Maryland, wiretapping and eavesdropping laws have been used to prosecute individuals who have recorded police activity in a public location.
“[In three states] it is now illegal to record an on-duty police officer even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.” –Are Cameras the New Guns?
In one example case, motorcyclist Anthony John Graber III was stopped for reckless driving. A plain-clothes police officer stopped him, jumped out of his car waving a gun and screaming, and issued a ticket. Graber had a video camera mounted in his motorcycle helmet; he posted video of the encounter to youtube. Ten days after the police encounter, after police found the video on youtube, Graber was arrested and charged under felony wiretapping laws, which could result in up to 5 years jail time. In December 2009, street artist Christopher Drew found himself in a similar situation in Chicago. Drew was arrested while selling art on the streets of Chicago as a test of the cities anti-peddler law. During the arrest, police officers found a small audio recorder that was recording and charged Drew under felony wiretapping laws; Drew faces 4-15 years in prison. As the Freeman reports, not everyone in the legal realm agrees with these policies: Massachusetts Supreme Court Chief Justice Margaret Marshall dissented to a 2001 ruling upholding charges stemming from recording police activity, “Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals….”
For further reading, keep up with Carlos Miller’s Photography is Not a Crime blog. Since his own arrest in 2007 for photographing Miami police (he was acquitted of all charges), Miller has been chronicling cases of First Amendment violations, many of which involve photographers arrested for taking pictures in public places. And take a look at the excellent Photographer’s Rights pamphlet for US photographers.
UPDATE: In 2010, charges against Anthony John Graber III were dismissed by a Maryland judge. The ruling “makes it clear that police officers enjoy little expectation of privacy as they perform their duties” and helps narrow the definition of wiretapping in the state’s laws. In the decision, the judge wrote that the situation “took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch, conclude that the troopers had any reasonable expectation of privacy in their conversation with the defendant which society would be prepared to recognize as reasonable.”