Police Privacy in the iPhone Era? The Need for Safeguards in State Wiretapping Statutes to Preserve the Civilian's Right to Record Public Police Activity
37 Pages Posted: 18 Jul 2010 Last revised: 4 Mar 2014
Date Written: April 17, 2010
The advent of iPhones, Blackberries, and other ubiquitous cellular devices instantly capable of capturing audio and video recordings has led to increased publicity of police misconduct, and a rise in the admission of evidence, inculpatory and exculpatory, gathered by “citizen journalists,” ordinary bystanders, or victims themselves. The probative value of such “iPhone evidence” and its public utility in exposing police abuses cannot be understated. However, a handful of states have criminalized the mere gathering of such videos under state wiretapping statutes that prohibit a broad range of nonconsensual recording, even of police officers in their public capacities. This Paper argues that the right of citizens to openly or surreptitiously record police officers performing their public duties, without fear of punitive and retaliatory prosecution, must be expressly safeguarded in state wiretapping statutes. This protection is rooted in background principles of the Fourth Amendment, which militate against conferral of privacy rights for public police actions; the First Amendment, which protects the right of the public to receive information and concomitantly the right to record police; and other salient public policy considerations. A Table of State Authorities, summarizing the relevant characteristics of all state wiretapping laws, and the federal counterpart, is also provided.
Keywords: Fourth Amendment, First Amendment, Police, Technology, Cellular Phones, Cell Phones, Record, Witness, Wiretapping, Privacy, Speech, Eavesdropping, One-Party Consent, All-Party Consent, Criminal Law, Constitutional Law, Civil Rights
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