Written and Illustrated by Thomas Okuda Fitzpatrick, Dunn Fellow

The availability of inexpensive digital cameras and cell phones with video capabilities in recent years has not only made it easy to record one’s friends, it has also made it easier for citizens and watchdog groups to videotape law enforcement officers in the performance of their duties.

comic strip illustrating person using a smartphone to record karaoke at night and then in the next frame using a smartphone to record police encounters

The result is an increased number of reported confrontations between police officers and citizens over whether the officers can be videotaped while doing their jobs.

For example, a motorcyclist in Maryland was charged with illegal wiretapping after posting a video, taken from his helmet-mounted camera, of his bizarre traffic stop with state police officers.  Last month a woman in New York was arrested on her own lawn for videotaping a police traffic stop in front of her house.  And in New Jersey, a 16-year-old girl was handcuffed, held for several hours and had her cell-phone confiscated, after filming two police officers who boarded her bus to handle an apparently drunk passenger.

A cartoon in which the first frame a police officer tells someone that they cannot film the officer and in the second frame, the ACLU representative says that they can film police

As in the Maryland case, some police departments have tried to use wiretapping laws to punish citizens for filming police, arguing that all parties being recorded are required to give consent.  This is clearly a misuse of wiretapping laws, which were designed to protect the privacy of communications in situations where individuals have an expectation of privacy.

Fortunately, in Virginia police will have a harder time making this argument, since the wiretapping law does not require all-party consent when recording another person or persons.   Also videotaping is only illegal if done in a place where the person being filmed has a reasonable expectation of privacy.

Still, we have seen situations in Virginia where citizens have been charged with disorderly conduct or obstruction of justice for filming police officers.  Using the wiretapping law to stop videotaping is a stretch, to be sure, but labeling the videotaping of police as disorderly conduct or obstruction of justice is creating new law out of thin air.

The bottom line is that government officials performing official functions in public places should not be able to hide behind wiretapping laws –or any other laws or policies —to prevent the public from recording their actions.

In fact the opposite should be true.  While some police work by its very nature requires secrecy, the right of the citizens to view, take photos or videotape the interactions of the police with the public when in public places should be explicitly protected by laws intended to increase government transparency and accountability.

If you or someone you know has been arrested, had their camera confiscated, or been warned not to film the police in public places, please contact the ACLU of Virginia at acluva[at]acluva.org.  We want to know when and where this is happening, and if we can help.