A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.
This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public, while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, as a form of confrontation to authority, is also a direct method of expression. Likewise, efforts to maintain privacy while navigating public space may create an incubator for thought and future speech, and also serve as direct expressive resistance to surveillance regimes.
As this Article explains, once the First Amendment values of both the right to privacy and the right to record are systematically understood, existing doctrine—including the concept of the “heckler’s veto”—can help restore balance between these sometimes competing forms of “speech,” permitting citizen recording of police as well as allowing government regulation of certain recordings that breach the privacy shields of other citizens.
Just as a heckler’s suppression of another’s free speech justifies government regulation of the heckler’s speech, so too when recording (a form of speech) infringes on and pierces reasonable efforts to maintain privacy (also a form of expression), then the government may limit the ability to record. The heckling framework underscores that liberated and vibrant public space is contingent on a balance between the ability to gather information and maintain privacy in public, while also providing a doctrinally-grounded path for adjudicating those interests.In Australia the Canberra Times reports that the Australian Federal Police appear to be continuing the practice of chilling legitimate observation by the public through claims that recording is illegal or, more subtly, seizing recordings as 'evidence'. Such seizure should be unnecessary if we have systematic recording by officers and preservation of that evidence, through for example bodycams.
The CT states that an officer
adopted a heavy-handed approach to seizing evidence after an onlooker used his mobile phone to film a public arrest in the city on Thursday. The incident on Barry Drive shows a man attempting to evade police on his bicycle. He is caught by several officers, tackled to the ground, and handcuffed.
The onlooker filmed the arrest of a man on Barry Drive. Then police approached him. It appears to be a textbook albeit clumsy arrest until one of the officers sees the person filming and tells him to stop filming and back away. The person filming complied and turned to go away but the Traffic Operations officer then chased after him, seized the phone, and according to the new victim in this incident's online comments, would not return it until he could record the person's details and get him to send any recorded footage to police.
Legal advice provided to The Canberra Times says that while police have the power to seize evidence, the more pressing issue in this case was whether the police "genuinely had grounds to suspect the footage could be important evidence in court". On the face of the limited public footage shown on social media, the evidence would appear to be to the contrary.
The ACT Law Society goes on to suggest that the person was well within their rights to film the incident. The more likely reason the phone footage was seized was that "[the police] were more concerned about PR given it was a less than glamorous arrest". ACT Police media are continually requesting via their media interactions that anyone holding CCTV or dash cam footage to assist in their investigations.
Police released a statement on Friday about the incident in which they identified the offender as in breach of his bail conditions. "The man was placed under arrest, and was subsequently charged with breach of bail, fail to appear, possess knife without reasonable excuse, and unlawful possession of stolen property," police said. "The video was provided to police. "As this matter is now before the courts, we are unable to comment further. However, in general terms police have the power to seize footage from members of the public as evidence."One response is that having a power is not identical with an obligation to use that power.
My experience on campus several years ago, ironically as I was walking to give a privacy lecture, was being told by a uniformed AFP officer that it was illegal to film that officer - irrespective of circumstances - and that if I chose to do so I could be arrested. Possibly the thin blue line needs some more education.
The 'needed for evidence' seizure of devices poses challenges for advocates of sousveillance.
One perspective is provided in 'Context, visibility, and control: Police work and the contested objectivity of bystander video' by Bryce Clayton Newell in (2019) 21(1) New Media and Society, which
examines how police officers understand and perceive the impact of bystander video on their work. Drawing from primarily qualitative data collected within two police departments in the Pacific Northwest, I describe how officers’ concerns about objectivity, documentation, and transparency all manifest as parts of a broader politics of information within policing that has been amplified in recent years by the affordances of new media platforms and increasingly affordable surveillance-enabling technologies. Officers’ primary concerns stem from their perceived inability to control the context of what is recorded, edited, and disseminated to broad audiences online through popular platforms such as YouTube.com, as well as the unwanted visibility (and accountability) that such online dissemination generates. I argue that understanding the effects of this `new visibility’ on policing, and the role played by new media in this process, has become vitally important to our tasks of organizing, understanding, and overseeing the police.'Points of View: Arrestees’ Perspectives on Police Body-Worn Cameras and their Perceived Impact on Police–Citizen Interactions' by Emmeline Taylor and Murray Lee in (2019) The British Journal of Criminology comments
Entirely absent from debates about the desirability and potential impacts of police body-worn cameras (BWCs) are the views of a significant group on the other side of the lens—individuals who have recently experienced arrest by a police officer. In a bid to redress this significant gap, this article reports findings from the first study to examine arrestee views and experiences of police BWCs. Data from interviews with 907 police detainees reveal that they are largely in favour of officers wearing cameras, believing that they can provide greater accountability and improve the behaviour of both law enforcement officers and members of the public. Importantly, however, this support is contingent on a number of operational and procedural policies regulating the use of BWCs.The authors argue
‘Release the tapes. Release the tapes’ chants a throng of protesters in North Carolina, USA following the fatal shooting of Keith L. Scott by police in September 2016. Amid mounting pressure, the police released segments of two videos; one from a police dash-cam and the other from a police officer’s body-worn camera (BWC). Although neither recording provided conclusive evidence about the events that unfolded, or crucially whether Scott was indeed carrying a gun as had been claimed by the officer that shot him dead, the controversy highlights the degree to which audio-visual technologies have come to play a politically laden role in policing internationally, and importantly, symbolically represent notions of fairness, legitimacy, transparency and accountability. Despite such high-profile examples emphasizing their fallibility, recent years have seen billions of public monies invested in police BWCs internationally. A lack of evidence demonstrating effectiveness, or an understanding of how they operate in practice, has certainly not hampered their rapid adoption. Rather, an evidential desert has enabled police BWCs to be ascribed many ‘mythical properties’ (Palmer 2016). Elevated to ‘best practice’ from multiple sources including the American Civil Liberties Union (ACLU 2015) and the International Association of Chiefs of Police (IACP 2014), their costly adoption has proceeded on an exiguous evidence base. Although not unusual for police technologies to be heavily invested in without sufficient understanding of their effectiveness (Lum et al. 2019; Taylor 2010), the lack of awareness regarding how the public view and understand the police use of BWCs runs the risk of them inadvertently negatively impacting on perceptions of procedural justice and police legitimacy.
Since the publication of a 2015 literature review that refrained ‘from drawing any definitive conclusions about BWC’ due to the scarcity of research (Lum et al. 2015: 11), Lum et al. (2019) report a five-fold increase in empirical studies. In addition to a modest catalogue of randomized control trials (RCTs) that typically use officer behaviour (e.g. use of force) and citizen behaviour (e.g. resisting arrest and citizen complaints) as proxy measures for assessing impact (see, e.g. Jennings et al. 2014; Ariel et al. 2016a; Braga et al. 2018), several studies have sought to gain insight into the views and experiences of police officers (Jennings et al. 2014; Katz et al. 2014; Roy 2014; Gaub et al. 2016; Goetschel and Peha 2017; Headley et al. 2017; Sandhu 2017); law enforcement leadership (Smykla et al. 2016; Sandhu 2017), and public attitudes toward police BWCs (Ellis et al. 2015; Maskaly et al. 2017; White, Gaub and Todak 2017). Yet, remarkably, entirely absent in debates about the desirability and potential impacts of BWC thus far are the views of an important group on the other side of the lens—i.e. arrestees. It is this literature on the perceptions of police BWCs that this study contributes a vital and unique dataset. By understanding the views of arrestees, we can begin to see how they might animate their encounters with camera-wearing officers and influence their perceived understanding of any subsequent involvement with criminal justice procedures.
The article is organized into five sections. First, an overview of developments in the use of audio-visual surveillance technologies in policing is provided before looking at the emergence of police BWCs specifically. The second section offers a précised overview of empirical research, focusing on the impact that BWCs have been found to have on the behaviour of police officers and citizens. Adding a vital international perspective, an overview of developments in Australia, the site of this study, is provided in the third section.1 This is followed by details of the methodology before the article turns, in the fifth section, to the findings. The study elicited a large amount of data and this article focuses specifically on four thematic domains not elsewhere reported: police use of force; arrestee aggression and violence; procedural justice; and, the operation of the cameras. By shifting the focus to those individuals on the other side of the lens, the analysis offers essential insights into the nuanced ways that police arrestees interpret and respond to police wearable cameras. This is of global significance if police legitimacy is to be maintained in the era of ‘new visibility’ (Goldsmith 2010). The sixth and final section discusses the implications for the ongoing operation of police BWCs and avenues for future research.Another perspective is offered in 'Eyes and Apps on the Streets: From Surveillance to Sousveillance Using Smartphones' by Vania Ceccato in (2019) 44(1) Criminal Justice Review, which
explores the concept of surveillance by assessing the nature of data gathered by users of a smartphone-based tool (app) developed in Sweden to assist citizens in reporting incidents in public spaces. This article first illustrates spatial and temporal patterns of records gathered over 9 months in Stockholm County using Geographic Information Systems (GIS) to exemplify the process of sousveillance via app. Then, the experiences of user group members, collected using an app-based survey, are analyzed. Findings show that the incident reporting app is more often used to report an incident and less often to prevent it. Preexistent social networks in neighborhoods are fundamental for widespread adoption of the app, often used as a tool in Neighborhood Watch schemes in high-crime areas. Although the potentialities of using app data are open, these results call for more in-depth evaluations of smartphone data for safety interventions.Ceccato comments
Since Jacobs’s seminal work, The Death and Life of Great American Cities in 1961, we have heard the powerful key concept of “eyes on the street” countless times. Jacobs (1961) wrote that in order for a street to be a safe place, “there must be eyes upon the street, eyes belonging to those we might call the natural proprietors of the street” (p. 35). But the era of smartphones and location-based services (LBS) has changed the way that the individuals interact with a city. Now, “eyes” are complemented by “apps,” giving expression to new ways of depicting what happens in public space and perhaps redefining the role of guardians in surveillance. Compared with the traditional eyes on the street, the new exercise of social control invites a number of senses other than sight, such as touch and sound. An incident that happens on the street is still local (attached to a physical place with a pair of coordinates) but can now be seen by faraway eyes, literally by the whole world. Jacobs’ sense of “natural proprietors of the street” acquires a different meaning, as those who set a record on the (m)app are not only local residents but also visitors or transients, perhaps with no attachment to the area. With networks of smartphone app users, the process of sousveillance (Mann, 2004, p. 620), from French for “to watch from below,” seems to be more appropriate than surveillance (“to watch from above”). “Sousveillance describes the present state of modern technological societies where anybody may take photos or videos of any person or event, and then diffuse the information freely all over the world” (Ganascia, 2010, p. 489). This article calls for a reconceptualization of the term surveillance in the context of crowdsourced data (as sousveillance) gathered by LBS apps.
The aim of this article is to explore the concept of surveillance and related terms by evaluating the nature of the data captured by users of an incident-reporting app,1 which was developed to support crime-prevention initiatives across Sweden. The aim is achieved by first characterizing this type of crowdsourced data as a result of the processes of sousveillance with an LBS app. Nine months of reports (app entries) in Stockholm County are assessed using geographic information systems (GIS) in relation to other indicators of safety and area characteristics. Also, the experiences of app users are analyzed via a survey. Then, by looking at the nature of the app-based data and the characteristics of the app users, we reflect upon some ideas that are taken for granted and traditionally characterize the process of surveillance.
A reason to choose Stockholm, the capital of Sweden, as a case study is the availability of app-based data coming from smartphones (the app is an award-winning, free digital tool) that promote sousveillance through an online “Neighborhood Watch” scheme (NWS) and support local emergency services. Moreover, another reason for this choice is the degree of media penetration in the country, which is one of the highest in the world (Fox, 2013). According to The Internet Foundation in Sweden, as many as 77% of the population has a smartphone, 62% uses the Internet on their smartphone on a daily basis, and 57% navigates with help of a GPS in the smartphone. In 2015, over 95% in the 8–55 age-group were using the Internet, and this percentage is increasing within all age groups (Internetstiftelsen i Sverige, 2016).
This article is structured as follows. It first reviews the literature in guardianship and surveillance and indicates how they may be affected by new technological developments, for example, LBS apps. We identify the current knowledge gaps in the international literature and use the Stockholm case study to contribute to filling some of these gaps. Note, however, that the Stockholm study presented here is based on a small sample data set, which means that some of the conclusions are driven by an exploratory analysis of the data rather than by rigorous, confirmatory hypotheses testing. Instead of claiming generality of the results, this analysis provides examples that are illustrative for the field. This article ends with a discussion of relevant topics to be pursued in future research and some of the technical, legal, and ethical challenges that lie ahead when using smartphone data.