The Legal Ins and Outs of Recording in Public

By Nicholas Pell

Camera phones are in the news again. In 2012, the Washington, D.C. police chief recently issued a memo stating that she believes recording police on the job is a First Amendment right. This is, however, far from a legal decision. Instead, it’s the policy of a single police department. The legal status of recording in public varies greatly from one state to another. Before you pull out your smartphone to record the police (or anyone else, for that matter) you should be sure you’re within your legal rights to do so.

Theodore Claypool, co-author of Protecting Your Internet Identity: Are You Naked Online? is a lawyer based in Charlotte, N.C., specializing in privacy, intellectual property and data management. “Law lags behind society and it should,” says Claypool. “Unless there’s a constituency, legislators tend toward non-action.”

Still, there’s some relevant case law on the matter. Claypool explains the concept of “privacy by obscurity.”

“Just because you’re out in a public park, that doesn’t mean you’re consenting to everyone knowing who you are.” The problem? Once you’ve been digitally captured, you’re no longer “obscure” anymore. This means that while it would be illegal to stalk you with a video camera and record your every move, it would not be illegal to film you in the context of throwing around a Frisbee.

In the United States, there are differences by jurisdiction. But there are three main areas that might be off limits when it comes to filming in public:

  • Voice recording: In most states, the consent of at least one party must be obtained to record a conversation. In a minority of states, all parties’ consent must be obtained. This applies to video recordings as well as audio-only recordings.
  • Voyeurism: Many jurisdictions prohibit videotaping for voyeuristic purposes. Even where it’s legal, you can get into deep social hot water.
  • High-profile locations: Many bridges have signs around them stating that it is prohibited to film them. This is a post-9/11 measure designed to prevent terrorist groups from gathering intelligence on potential targets. When in doubt, ask. At least one man has been arrested for filming the Chesapeake Bay Bridge.

Context, it seems, matters a great deal, especially with regard to social norms. “I’ve got three rules,” says Claypool. “Be polite, which also means don’t be creepy. Ask permission if you’re going to use a video or photograph in any public way. And unless you work for TMZ, avoid celebrities.” Why? Because with celebrities, there are entirely different rules regarding the use of their image, and TMZ has one thing you probably don’t have: an army of lawyers.

Nicholas Pell  is a freelance writer based in Hollywood, CA. He writes about music, personal finance and technology for publications such as LA Weekly, Salon and Business Insider. He’s been online since the days of Usenet groups and bulletin board systems.


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