Tell the Government to Say Cheese
by Gavin Baker, 10/25/2010
Attempts to prevent citizens from recording the government have been rebuked in two recent cases.
In a settlement filed on Oct. 15, the federal government acknowledged the public's right to take photographs outside federal buildings. The lawsuit was brought by an activist who was detained by the Federal Protective Service (FPS), a division of the Department of Homeland Security responsible for the security of federal properties, while photographing a protest outside a federal courthouse in New York. The activist was represented by the New York Civil Liberties Union. In the settlement, FPS agrees to instruct its officers that there are no rules against taking pictures of federal courthouses from public places.
A separate case in Maryland upholds citizens' right to record their interactions with public officials. A motorcyclist recording his ride with a helmet-mounted camera was pulled over for traffic violations. The motorcyclist posted video of the traffic stop online and was later arrested under Maryland's wiretapping law, which prohibits recording a private conversation without the consent of all parties. The motorcyclist's defense was supported by the American Civil Liberties Union of Maryland.
On Sept. 27, a judge threw out the wiretapping charges, stating that the traffic stop was not a private conversation because it occurred in a public place. The opinion also cited a letter from the Maryland Attorney General suggesting that "a police stop of an individual necessarily is not a 'private conversation'" and is thus open to recording by the individual.
The judge concludes with this remark:
Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.
Such inverse surveillance, or sousveillance, can be a forceful tool for government accountability. Widespread access to recording technologies, like the camera phones carried by millions of Americans, and the ease of broadly sharing information online, create opportunities for powerful citizen journalism. Moreover, it's ironic for government to promote its phone apps while at the same time telling us to put away the camera.
After all, the right to observe government actions in public places is one of the most basic methods of transparency. The right to record those observations cannot be far behind.
Image by Leo Reynolds, used under a Creative Commons Attribution-NonCommercial-ShareAlike license.