The introduction of the iPhone, and with it the smartphone revolution in 2007, has been both a boon and a bane for law enforcement. While apps and constant connectivity have enhanced police officers’ productivity, the legal landscape surrounding society’s use of these devices continues to evolve. The resulting uncertainty occasionally leads to makeshift policies, undesirable press coverage, and lengthy court battles.

As the law in this domain solidifies, departments must be quick to recognize appropriate tactics and quickly adopt effective policies. A more pronounced area of smartphone jurisprudence centers around citizens recording on-duty police officers, which is now legal in every jurisdiction of the United States. Nevertheless, misunderstandings about two-party consent laws and wiretap statutes have resulted in a substantial number of improper arrests and detentions in recent years. As a result, departments have not only been responsible for more than $1 million in related settlements over the past three years, but have also faced heavy scrutiny by the public and in the media for these events.

Through proactive training, departments have an opportunity to stop the bleeding of public trust and shape perception of law enforcement for the better.

Openly recording on-duty police is never wiretapping
Although the language varies from state to state, wiretap statutes prohibit recording conversations for which the requisite consent has not been obtained. In thirty-eight states and the District of Columbia, only one party to the conversation needs to give permission for the recording. In the remaining twelve states—colloquially referred to as “two-party consent states” even if more than two people are involved—all parties to a conversation must consent to the recording.

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However, in nearly all of the two-party consent states, an exception is made when the parties are in public and have no reasonable expectation of privacy. Case law in recent years consistently held that on-duty police do not have a reasonable expectation of privacy while conducting a traffic stop. The only states that did not have an exception for reasonable expectation-of-privacy—Massachusetts and Illinois—have since clarified their stance on cell phone recordings.

Notable Settlements
Police departments expend significant resources to settle lawsuits brought by a people arrested for using a cell phone to record on-duty officers.

In Illinois, the state legislature amended its wiretapping law to make it illegal to record on-duty police without consent, even in public. However, the Illinois Supreme Court held the provision unconstitutional in 2014. In Massachusetts, Michael Hyde was convicted in 2001 of secretly recording an officer during a traffic stop and sentenced to two years’ probation. The subsequent case of Simon Glik led to a First Circuit Court of Appeals decision in 2011 which stressed the contours of this law: if the recording of police is done openly, it will not violate the law.

Nevertheless, the arrests continue. A plain reading of wiretap statutes may not apprise officers of the relevant expectation-of-privacy exceptions, which can be located in another chapter of the state’s code or judicially created through case law. Moreover, wiretap laws have changed (in the case of states like Illinois, several times) in the new millennium. Officers who are not specifically trained or retrained on this topic will understandably misapply the law.

If your department falls into this category, you can follow the lead of elite company. In August 2014, in the wake of events in Ferguson and two settlements for which it paid a combined $375,000 to citizens arrested for filming police activities, the NYPD circulated a memo to its officers reminding them that “[m]embers of the public are legally allowed to record police interactions. Intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.”

Likewise, after agreeing to a $170,000 settlement for an arrest stemming from a cell phone recording, the Boston Police Department published and circulated a video on YouTube describing the state’s wiretap laws and analyzing it under specific scenarios. By defining clear standards for officers, the potential for abuse are departmental liability are simultaneously diminished.

Citizen recordings shape the public perception of police
Perhaps attributable to a few highly-publicized use-of-force incidents, a 2015 Gallup poll found that public confidence in police has declined to levels not seen since the Rodney King riots. To assume that smartphone-wielding citizens are only interested in portraying police in a negative light, however, only feeds hostility. Rather, if officers view cell phone recordings as opportunities to exemplify their public service, results can be much more positive.

Photographs or videos depicting officers at their best have just as much potential to go viral as when officers are at their worst. In November 2012, a citizen snapped a photograph of NYPD Officer Lawrence DePrimo delivering a pair of boots to a homeless man on a cold night. The story made national headlines. On Facebook alone, the photo was viewed millions of times, “Liked” by more than 600,000, shared more than 214,000 times, and garnered more than 47,000 comments.

Later that year, a video of a deputy sheriff protecting citizens’ First Amendment right to record made the rounds on social media, eventually being viewed more than a quarter million times on YouTube alone.

Despite their declining approval ratings, the public’s desire to applaud officers has not waned post-Ferguson. On September 20, 2015, Elgin Police Sergeant Ken Ericson approached a group of more than 40 young people suspected of drag racing and loitering when one of them pulled out his cell phone to record the encounter. Ericson responded with a thoughtful, polite, and respectful address to the group. Within three days, that cell phone video was posted to Facebook and viewed more than 10 million times, drawing the officer and department praise from all corners. Though Ericson’s model behavior is representative of many officers, his particular nonchalance toward the cell phone cameras is something that should be emulated by others.

Officer safety is paramount
As important as public perception is for a department, it is not a substitute for officer safety. Cell phone videographers must keep their distance to avoid interfering with official duties, and they should be politely warned when they get unreasonably close or cause an officer on duty to fear for their safety. Officers must also be careful not to become too attenuated to the sight of people pointing objects in their direction that they compromise their ability to distinguish phones from weapons.

Balancing these interests now and as new technologies emerge will continue to challenge the law enforcement community. If viewed with a proper perspective, recorded encounters with civilians will also present new opportunities to protect and serve.

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