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Famed Appeals Court Judge Worries That Allowing People To Record Police Might Mean That People Actually Record The Police

Privacy

from the wtf? dept

Fri, Sep 16th 2011 12:07pm -

While I definitely don’t agree with famed 7th Circuit appeals court judge Richard Posner on everything, he’s generally recognized as a smart judge with a strong libertarian belief and a recognition and understanding of real economic issues. However, there are a few times when he seems to just reach a weird conclusion. Case in point: in a case involving Illinois’ somewhat ridiculous “eavesdropping” law, which makes you a criminal just for recording the police with a mobile phone, Judge Posner has suggested that letting people film police is undesirable:

“If you permit the audio recordings, they’ll be a lot more eavesdropping.?There’s going to be a lot of this snooping around by reporters and bloggers,” U.S. 7th Circuit Judge Richard Posner said. “Yes, it’s a bad thing. There is such a thing as privacy.”…

Say what now? We’re talking about recording public officials who are paid with taxpayer dollars doing a job in public, and Posner is worried about their privacy rights? Wouldn’t it be a good thing for reporters and bloggers to be “snooping around” police if it turns up problems or corruption? And, really, since other courts have already declared similar rules unconstitutional, and it hasn’t rendered those kinds of states into this crazy dystopia that judge Posner envisions, shouldn’t that be evidence that these “concerns” are out of touch with reality?

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Comments on “Famed Appeals Court Judge Worries That Allowing People To Record Police Might Mean That People Actually Record The Police”

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73 Comments
:Lobo Santo (profile) says:

IMHO

I’ve always wondered; and today we’ve the tech–why aren’t All “public” servants subject to 24/7 audio/video recording while they’re on the job?

Shouldn’t “we the people” know if we’re getting our moneys worth from the assholes?

Citizens’ taxes are paying for their salary; shouldn’t any citizen be able to scrutinize their performance?

DCX2 says:

Re: Re: Re:2 IMHO

It is not a false dichotomy at all.

A police officer who is currently on duty is a servant of the public and therefore should expect no right to privacy while performing the duties that the public pays them to do.

When the officer is off-duty, they are then private citizens, with the same expectation of privacy as any other private citizen.

Anonymous Coward says:

Re: Re: Re:2 IMHO

Private corporations get to monitor their employees, via video cameras and otherwise, while their employees are on the clock. Private corporations do not get to monitor employees off work at home. Why? While employees are at work, employees are paid by the corporation.

Likewise, a police officer is a public employee, paid by the public. While being publicly paid, the public gets to monitor them.

:Lobo Santo (profile) says:

Re: Re: IMHO

That’s a nice strawman you’ve got there. It’s be a shame if anything happened to it. Have I shown you my flamethrower?

And to reply to your stupid comment:

YES, every science-damned second that I am working as a public servant I should be recorded so the citizens who’s forcibly taken wages pay for my salary know how good of a job I am doing (you putz).

btr1701 (profile) says:

Re: Re: Re:3 IMHO

> Perhaps I could’ve phrased it more clearly
> as “at any moment of the day when they’re
> on the clock” or something to that effect…

In several states, police officers are on duty all the time, 24/7/365, even while at home or on days off. They can be recalled or required to respond to an incident at any moment.

Should they be required to have cameras and monitoring equipment installed in their homes?

Dark Helmet (profile) says:

Re: Re: IMHO

“I think you can get that as one as you agree to be subject to the same. Are you offering to allow the world to record all of your movements, all of your words, and all of your actions?”

Uh, that isn’t what Lobo said. He said public servants should be subject to monitoring while on the job. As someone payed for by taxes, this might make sense. Applying that to private individuals and all their movements, words, and actions, as you suggested, is as non-analagous as it is silly….

Chris Rhodes (profile) says:

Re: Re: IMHO

I think you can get that as one as you agree to be subject to the same.

If I was a public “servant”? Sure,

Are you offering to allow your employer to record all of your movements, all of your words, and all of your actions?

Fixed that for you. And if my employer wanted me to do that, I would then have a choice to make, wouldn’t I?

Anonymous Coward says:

Re: Re: IMHO

You mean like in the UK where we are monitored by CCTV at every turn? Automatic Number Plate Recognition (ANPR) fitted most places? You want me to carry on?

Police corruption, that`s easy, google Murdock (News of the World) & all the back handers they were paying to the Police (STILL yet to be “investigated”).

And all this is just in the UK!

May I refer you to all the intercepted mobile calls during 911? You know all the “warrant-less wire-tapping that occurred…

That`s not even taking into account all of the bent USA cops that have already been Youtubed!

They are called PUBLIC servants for a reason.

/Rant off

Ilfar says:

Re: IMHO

When I worked as a Petroleum Distribution Manager on the night shift, I was under constant surveillance except for those areas I would reasonably expect privacy – the toilet and the break room.

In a less glamorous sounding take on that statement – when I pumped gas on the grave shift, the gas station had a system of security cameras. Now that I think on it, the ‘Mystery Shopper’ was a form of surveillance as well.

Personally I expect ANY time I’m being paid to do something, that I should be getting at least occasional checks to be sure I’m doing what I’m supposed to be doing.

Cowardly Anon says:

What I don’t get, and will never understand is why when police record a traffic stop or encounter with their own car mounted cameras and mics, it’s 100% legal and ok. But, if I, as a civilian, were to record the exact same encounter…even at the same time…I’m breaking the law.

How is it protecting people when the cops do it, but endangering police and violating their rights when civilians do it?

It’s a depressing double standard. One that can land you in jail.

Anonymous Coward says:

I’d agree with the judge that there is a thing as privacy. There are times when an on-the-job government worker should probably not be filmed by the public. Inside your office, building, etc. is really not a place you want people filming. Whether it should be legal or not is another question but I can at least follow that arguement.

There is absolutely no reason that when in public, public officials cannot be filmed. There is no expectation of privacy while standing on the street.

Anonymous Coward says:

Re: Re: Re:

Pretty much all of the videotaping the police cases have centered around the “audio” portion via envoking wiretapping laws that really don’t fit the situation very well and certainly weren’t designed for these situations.

The “audio” portion is just a means to an ends used by abusive police depts to get the videotaping stopped.

HrilL says:

Re: Re: Re:

I’ve still yet to ever read a police report that didn’t have the officer over stating facts and making up things that never even happened. From this point on all my interactions with police will be recorded.

Face it no one remembers everything 100% correctly but an unaltered video and audio is 100% correct from the view and mic of the recording device.

Jeffrey Nonken (profile) says:

Re: Re:

Well, maybe the answer there is for the cops to keep their own records?

Obviously if the records diverge there will need to be an investigation into why. But that’s the court’s job.

And since police already can and do sometimes keep their own records, the public being able to is just a matter of leveling that particular playing field.

Sauce for the goose.

OC says:

While I agree that any police officer, or other public servant in the public, shouldn’t expect any privacy on the job I don’t think it’s as black/white as people think it is.

Even if it’s okay to record the officer s/he often interacts with victims of crime, witnesses, etc which most likely aren’t expecting to be recorded. One can also easily imagine scenarios where, if the recording was made public quickly, it would prevent or make it harder to catch the guilty.

Anonymous Coward says:

All of the banter back and forth assumes that all recording is somehow objective and non-prejudicial.

I’d think that assumption is problematic, which is why you don’t want citizens being recorded all the time. I would think that the same argument could be made for police officers (or other public servants) even when their on duty.

What if the public servant has a strange tick and scratches himself a lot or is very flatulent or picks his nose all the time? Recordings of their every moment on duty could be embarrassing for them and easily used by others to denigrate or humiliate.

Further, would you record them while they’re urinating in the bathroom stall? Where would the recording end? Everyone deserves some amount of privacy.

I would be in favor of a cop-mounted camera that is turned on during an incident that records the situation from the point of view of the cop being mandatory, though. I think that would help explain some of the things that cops do and could also be helpful in developing remedial and training programs for cops. I’d also think that should a cop not turn on the camera during the incident, he would be punished.

I also think that eyewitness recordings can be useful to help fully understand incidents and so all recordings of cops shouldn’t be made illegal as some many others have stated. I would think, though, that malicious recording (e.g., sticking your camera or phone in a cop’s face for no reason while claiming to some kind of watchdog or whatever) would be illegal. I guess what I’m saying is that context matters.

PlagueSD says:

Re: Re:

Yep. As long as you’re not interfering with the officer’s duties, it should be fine. If a cop is arresting someone, you should be able to record him from across the street.

As far as a “Cop-mounted camera” they have dash-cams in all the police cars. That’s why they ALWAYS perform thier actions in front of the vehicles.

HrilL says:

Re: Re: Re:

Santa Barbara Police department got rid of all dash cameras in 2006 because they claimed they cost too much. But they spent 400K on an armored vehicle that has absolutely no practical use. We also have a pretty corrupt police force and these cameras showed them doing improper things a few times so getting rid of them was in their interest of not being recorded doing things they shouldn’t.

DCX2 says:

Re: Re:

Your post is quite reasonable, however it seems like you’re setting up positions that you will not find anyone taking. No one will say that you should be able to record anything going to the bathroom. No one is saying that you should be able to invade the personal space of an officer by shoving a camera in their face. And I’m sure there’s a case that can be made for stalking if all you’re doing is trying to collect trivial embarrassing video of someone in public.

That said, I do agree with the overall point in your post.

Prisoner 201 says:

Re: Re:

There are probably laws against denigration and humilation (libel or whatever). No reason to ban recording on that account.

And of course recording a cop at the urinal should only be allowed if he is excercising his duty there, like arresting someone.

To clarify:

Whenever a public servant excercises his authority in public, any and all forms of recording should be allowed.

NullOp says:

Copz

Someday, people are going to realize that our “officials” do not want to be held accountable for their actions…ANY of their actions. On the one hand, they want to hide what they do. On the other hand, they need to hide what they do. The job of law enforcement is much like fighting a war. You absolutely do not understand the situation unless you are there or have been there. In the end recording the police in action must never be made a crime!

Anonymous Coward says:

Judge Posner’s comments, as well as those of his two colleagues on the 7th Circuit panel, were made during the course of oral argument before the court by both the ACLU and the State of Illinois. It is not at all unusual for judges in such instances to challenge opposing counsel in an attempt to flesh out the potential ramifications of what might be the result of a holding supporting the positions being advocated by counsel.

Frankly, I cannot begin to count the number of times where a judge asked probing questions that seemed as if the judge had already made up his/her mind, only to have that same judge author the court’s opinion holding exactly to the contrary.

Having listened to oral argument (link below), clearly Judge Posner pushed back on counsel for the ACLU. The same was done with respect to counsel for the State of Illinois.

How the decision will ultimately come out is less dependent upon what transpires at oral argument, and more in consonance with existing judicial precedent.

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=11-1286_001.mp3

I believe it is fair to say that the issue here is not as “crystal clear” as some seem inclined to believe.

AZMarkoff (profile) says:

Police State

I understand it is a crime to advocate the violent overthrow of the government. I also think it’s the only way it’s ever worked, which is why “they” have made it illegal. And once the government is complicit in depriving you of your rights to peacefully monitor them as they perpetrate unwarranted violence upon the citizens, I believe those who would cling to power by telling you that you can’t depose them via the only means that’s ever worked are illustrating a very interesting priority of hypocrisy, that should tell the average citizen something critical about the situation they are in.

Anonymous Coward says:

Re: Police State

Actually, advocating the violent overthrow of government is not only not unlawful, it’s protected by the First Amendment. See, for example, Brandenburg v. Ohio, 395 U.S. 444 (1969), holding an Ohio statute that prohibited “advocat[ing]…the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” unconstitutional:

“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg, 395 U.S. at 447-48.

I and many others would appreciate it if you actually do some research before spreading inaccurate information as if you know what you’re talking about. Learning to research and apply the law isn’t that complicated–I’ve won three lawsuits against the state for civil rights violations all on my own, no lawyer, and I barely graduated high school and never went to college. The biggest reason civil rights violations go unpunished is because most victims don’t know their rights, let alone consider challenging violations. Spreading bad information contributes to that problem. Better to remain silent and be thought a fool, etc. Bad info might inadvertently result in someone being quiet when they could or should speak, or worse, in someone thinking unlawful action by the government is actually lawful despite a personal desire to challenge it.

And as a practical matter, Mr. Revolutionary, if you’re going to advocate the violent overthrow of government, you should at least know what you’re overthrowing.

Chad says:

Only a little bit in agreement with the judge

I can see everyone’s point that we should be able to get the dirt on public officials if there is dirt to be had, but keep in mind that they’re human and have opinions, sometimes differing from yours.

When people go out of their way to “eavesdrop” on them, let’s face it, it’s usually to TRY to get dirt. That, mixed with overly sensitive people who can’t get jokes and can’t get that people are allowed to have an opinion of their own different from theirs will make sure that the officer in question is severely reprimanded for something very tiny.

I’m all for exposing injustice with people taxpayers are responsible for, but I think the privacy issue shines when even the small insignificant things are taken out of context and misconstrued because someone was trying to get the story or get the dirt.

I honestly don’t think that it should be stopped, that’s my official position on it. I think people should be able to record whatever they want. I disagree strongly with the suggestion by the judge that recording will lead to a huge influx of eavesdropping; quote: “they’ll be a lot more eavesdropping”. That’s just not true.

What I also believe though is that these officers should be allowed privacy, because people will go out of their way to make a big deal out of a little thing. Should this be enforced by law? No. it should be enforced by commonsense. People should stop going out of their way to expose bullshit and then there really wouldn’t be an issue, would there?

ways-to-skin-a-cat says:

Use of Recordings

There are all kinds of scenarios that come to mind, with recordings of cops. If the cop is corrupt, abusing his powers, and protected by corrupt superiors, then a recording exposing this should be protected by law.

If the cop is being smeared/attacked because s/he’s gay, and the recording is to expose that nature of personal information with the intent of harming the cop’s career, then the cop should be protected by law.

Interesting legal question, and I don’t guess I envy the judge making the call. This one requires wisdom that is in short supply in this world.

Anonymous Coward says:

The real reason they're afraid of cameras

The government is probably terrified of citizens recording them because they’ve spent the last half-century building up a national press machine that thrives on sensationalizing everything for a story. The government can control the statements and appearances of its own officials, and can strongly influence the media at high levels. What it can’t control are the lower levels–the individual idiot cops that do stupid things and the local reporters that are fighting ravenously over a few thousand viewers. The combination of citizen cameras recording idiot cops and reporters desperate for stories has the potential to strongly instill a belief in the public–whether it’s justified or not–that all cops are idiots or abusive, causing public pressure on government.

BadKitty says:

Corruption vs being able to do the job.

Pointing out corruption is one thing, and for that I support it completely…

That said there are times when such observation could be detrimental to their ability to do their job. Examples would be a reporter leaking out information that alerts a suspect to their imminent capture and allows their escape, or key detail that were being held in reserve to separate the actual perpetrator of a crime from some nut job confessing for his 5 minutes of fame. Or details like the identity of an undercover officer that gets him killed.

It’s all about responsibility, yes the police should be doing their job and doing it right, but the public also has a responsibility to the police not to get in the way of them doing their job.

Anonymous Coward says:

Stupidity of the People appointed to protect the peoplep

Stupid judge answer this. If it is illegal to ‘tape’ or ‘video’ a law enforcement person doing their job then,

why are video camera allowed in stores and banks and all over the public domain taping/videotaping people at work or taking
care of their BUSINESS?

I truly hope that the stupidity/cupidity disease running rampant through the present political world has not reached the bench. Pleas show me this JUDGE was misquoted.

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