Opinionated @ CFE

Protecting the Right to Record


On at least a monthly basis, there is a new story of someone legally taking photographs or video who gets harassed by a law enforcement officer without any cause. In some cases, it’s someone innocently taking photographs of a public landmark. In others, it’s a citizen recording a police action of a questionable nature such as this beating of a suspect by a police officer in St. Louis. In all of these cases, the right to freely photograph or record in public should be a given and is often protected by law. Unfortunately, police officers looking to cover up bad behavior often work with district attorneys zealous for convictions to bury people under obscure wiretapping statutes, all for having the audacity to want their own record of events.

A state senator in Connecticut has decided that this needs to stop and has filed an appropriate bill. It not only seeks to recognize the right of people to lawfully record a police action without interfering, but also establish clear civil liability against any officer who would dare to violate said right. As Radley Balko points out, this is kind of a big deal. Officers can (and regularly do) intimidate, harass, threaten, and arrest anyone who refuses to comply with the unlawful order to stop recording because there is no consequence for it. Establishing liability will likely be a suitable deterrent to these kinds of bullying.

I, however, don’t think this goes far enough. Public officials have been caught making the same kinds of threats when they’re behaving badly. Locally, embattled Provo Councilman Steve Turley got into it with another member of the council over recordings of a meeting concerning some of his property. Anyone who is in a position of public trust, including both appointed and elected officials as well as public employees, should be held to a pretty high standard of conduct. If they are misbehaving, we, as the public and effectively their employer, deserve to know. We have the right to record them in the discharge of their official duties, especially in a public place or accommodation.

So how does Utah stack up in recording rights? That’s kind of iffy. I can’t find anything specifically governing photographs, videos, and audio recordings of public officials and employees. My best guess is that like in so many other states, it would fall back to the old wiretapping laws despite those laws not being intended to address such situations. That, however raises as many questions as it answers.

A person not acting under color of law may intercept a wire, electronic, or oral communication if that person is a party to the communication or one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of state or federal laws. – Utah Code 77-23a-4, paragraph 7(b)

If you’re involved in whatever action you are recording, it’s pretty obvious that you would qualify as “a party to the communication”. But what happens if you are a bystander? If it’s a still picture or a video with no audio, does that circumvent the laws regarding “oral communication”? There also appears to be little to indicate that recording in a public place or during a public meeting provides any kind of exception.

Because of this vagueness and a need to hold public servants accountable, we need a stronger protective law here in Utah along the lines of what’s being done in Connecticut, but more comprehensive to cover not just police officers, but any public employee, elected official, or appointed official in the discharge of their duties. As one of my friends put it, this is like the 2nd Amendment for the arms of the information age.

One Response to Protecting the Right to Record

  1. If you read through the complete definition of the law in Utah you will see that there is no statute for open air communication orally. The law only applies to interception of “oral” communication if it is gleaned from a “transmitted” source via phone, data, or video transmission. It’s interesting to note that if a signal is intercepted between a cordless phone and it’s base it is not considered wiretapping. The problem is most citizen’s let alone law enforcement agents take the time to understand what is written in the law. It is important that we understand our rights as written and fight for them.

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