South Carolina Senator Aims To Criminalize The Recording Of Criminal Activity

from the a-new-high-in-low dept

Here’s how stupid legislation is assembled.

HOT BUTTON TOPIC + BRIEFLY CONCERNED LEGISLATOR – COMMON SENSE = A proposed amendment so brain dead, its author should be immediately hooked up to an EEG.

The “hot topic?” The form of recorded violence known colloquially as the “knockout game.” Said “game” is played by a minimum of one willing participant and one unwilling participant. The goal is to knock out the unwilling participant with one punch, preferably while being recorded for posterity/evidence. Video is then uploaded to YouTube (or other services) for appreciation by those who like this sort of thing.

The legislator who apparently failed to consider the mind blowing amount of unintended consequences built into his legislation? South Carolina senator Vincent Sheheen.

The amendment? Well, here’s what Sen. Sheheen would like to see changed in the current criminal code.

SECTION   1.   Chapter 1, Title 16 of the 1976 Code is amended by adding:

“Section 16-1-65.   (A)   It is unlawful for a person to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60 [violent crimes], during its commission. A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, must be fined not less than five hundred dollars or more than five thousand dollars or imprisoned not more than five years, or both.

(B)   A person who violates the provisions of subsection (A) and who publishes, or otherwise makes the video or audio recording, digital electronic file, or other visual depiction or representation available for public display is guilty of a separate offense and, upon conviction, must be fined not less than five hundred dollars or more than five thousand dollars or imprisoned not more than five years, or both.

(C)   A person who knowingly aids in the commission of a violation of subsection (A) or (B) or is an accessory before or after the fact in commission of the violation of subsection (A) or (B) is guilty of a felony and must be punished in the same manner prescribed in subsection (A) or (B), as applicable.

(D)   The provisions of subsection (A) and (B) do not apply to:

(1)   viewing, photographing, videotaping, or filming by personnel of the Department of Corrections or of a county, municipal, or local jail or detention center or correctional facility for security purposes or during investigation of alleged misconduct by a person in the custody of the Department of Corrections or a county, municipal, or local jail or detention center or correctional facility;

(2)   security surveillance in bona fide business establishments;

(3)   accidental or incidental recordings;

(4)   any official law enforcement activities;

(5)   private detectives and investigators conducting surveillance in the ordinary course of business; or

(6)   any bona fide news gathering activities.”

So, an amendment aimed at hauling in participants in the “knockout game” (the person holding the camera) will now criminalize all sorts of recordings. Sheheen pitches it this way:

“Really this is another tool for law enforcement to use to make sure that somebody can’t claim, ‘Oh, I didn’t commit that crime, I just videotaped it,’ when in reality they were part of the problem in the first place.”

Really, this is another tool for law enforcement to make sure that somebody can’t record police misconduct or use of excessive force. Sure, the person recording didn’t commit the crime being recorded, but they have now committed the crime of recording criminal activity. If a law can be twisted by bad cops to prevent or seize recordings of their dubious behavior, it very definitely will be.

That’s only one problematic potential consequence of Sheheen’s Folly. Eugene Volokh has more, much more, in his take on the law.

So you see a robbery occurring, or the police illegally beating a citizen, and you videorecord it — you’ve now committed a felony, unless you can persuade a court it’s a “bona fide news gathering activit[y].” (The recording isn’t “accidental or incidental,” since you’re making it deliberately.) Or say your friend is being attacked, and you record the video to give to the police or to use in a civil suit; perhaps you even expected an attack, for instance if you’re going to a potentially violent demonstration or going past a place where thugs have routinely attacked people of some race, religion, or sexual orientation. That too is a felony.

And while one could interpret any citizen action aimed at gathering information as “bona fide news gathering activit[y],” that’s far from clear. It’s an argument I’d make as your defense lawyer, but it’s not an argument you can feel confident about if you’re deciding whether to make the recording. If the law is enacted, any suitably cautious South Carolinian would be well-advised just not to record any crime he sees, if he wants to avoid the risk of prison time.

Sheheen’s amendment is ugly all over. While it makes exceptions for “bona fide business” surveillance, it makes no such exception for cameras mounted by private citizens to protect their own property. Someone breaks into your house and you’ve got the tape to prove it? Guess what: both you and the perp have violated the law.

Volokh points out the problems inherent in proving newsworthiness to prosecutors. The same uphill battle awaits those with accidental or incidental recordings. Try proving that negative in the courts while facing a zealous DA.

Not only does this criminalize citizens’ recording (and citizen reporting — bloggers aren’t journalists, etc.) but it has the potential to curtail law enforcement efforts. Stupid people record their own criminal activity all the time but putting this law on the books may make them decide to leave the camera at home. Sure, they’re already committing a crime, but why add additional months to the sentence? Why would someone purportedly trying to be tough on (a certain) crime want to discourage the generation of useful evidence?

This kneejerk amendment also overlooks the fact that many laws are already on the books for prosecuting camera-toting friends of assailants. Like aiding and abetting. Or conspiracy to commit a criminal act. There are ways to bring the “cinematographer” down without putting regular, law-abiding citizens at risk of violating an astronomically asinine law simply because they managed to capture evidence of criminal activity with their cell phone or personally-owned surveillance system.

Then there’s this:

…or other visual depiction or representation of a violent crime…

Not only will it be criminal to record criminal activity, it will also be criminal to create a graphic novel depicting criminal acts, depict a criminal act in a play, movie, television show or YouTube video, or perform a classic Punch and Judy routine. “Visual depictions” of fake crime? Also a crime. Yes, these scenarios are blatantly ridiculous, but that’s precisely what the law states. If Sheheen doesn’t want people mocking his stupid amendment with scenarios no self-respecting law enforcement officer (and even some LEOs with no self-respect) would drop the hammer on, then he should have written his amendment less stupidly. Or not at all.

I now turn this over to the comment section, who should be able to top these “what if” scenarios in a heartbeat.

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Comments on “South Carolina Senator Aims To Criminalize The Recording Of Criminal Activity”

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144 Comments
Internet Zen Master (profile) says:

Re: Sorry, South Carolina...

In addition, your privileges to watch any tv shows depicting violent criminal activity, including, but not limited to: Law&Order, NCIS, NCIS:LA, CSI (and its various spinoffs), Burn Notice, White Collar, Almost Human, Agents of Shield, Person of Interest, Castle, Hawaii Five-O, Criminal Minds, Sherlock Holmes, etc. have been revoked.

out_of_the_blue says:

Re: @ AC: You're missing the panicked yapping ankle-biter gene Techdirt fanboys have.

Anonymous Coward, Jan 14th, 2014 @ 8:56am

Seems you can still record police officers. Am I missing something?


Besides that, the crime is defined as having foreknowledge of a crime yet to be committed. But that wouldn’t get the fanboys yapping.


Mike is a professional troll: he has no visible purpose other than to gin up controversy to draw eyeballs.

05:18:32[g-325-5]

Karl (profile) says:

Re: Re:

Seems you can still record police officers. Am I missing something?

That section applies only to police officers themselves. That is, the police can “produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime,” and the police can “publish[], or otherwise make[] the video or audio recording, digital electronic file, or other visual depiction or representation available for public display.”

The exemptions enumerate the actor who film, not the actors who are filmed. Otherwise, it would apply to filming “any bona fide news gathering activities,” which is clearly not what the statute intends.

What’s so alarming is that you don’t need to be associated with the criminal in any way. The conspiracy charge applies to recording of the criminal act; not to the act itself. Unless you’re one of the enumerated exceptions, you can’t film any crime at all – whether you’re filming cops behaving criminally, some random crime on the street, or even your own attackers.

Anonymous Coward says:

Re: Re:

“(D) The provisions of subsection (A) and (B) do not apply to:

(4) any official law enforcement activities;”

Seems you can still record police officers. Am I missing something?

Yes, you are missing something. Obvious case in point, BAD LA cops beating Rodney King. Is this an illegal act or official law enforcement activity? As it turns out, it was an illegal act….baaahhhh….you get to be convicted of a felony because you recorded it. Off to jail with you….

vastrightwing (profile) says:

Malfeasance

I agree: the real idea here is to hide malfeasance by law enforcement. I refuse to believe law makers are that stupid as to not consider the ramifications of this. It takes a normal person about 10 seconds to think of how this law is wrong on so many levels.

The law makers hope is that he can persuade the masses, based on bad events to pass a law pretending to stop violence. Again, the real intent is to make it more difficult to document malfeasance on behalf of law enforcement.

As we know very well, enforcement will push the limits of its power as long as far as we allow it and then some.

DavidL says:

Security cameras

There’s an exception for security cameras in “bona fide business establishments,” but nothing for buildings which are not businesses. If I set up a camera in my house, or a church, or any other legitimate building that isn’t a business, and that camera catches somebody breaking in, I just committed a felony.

Anonymous Coward says:

Re: Security cameras

Technically, protecting your personal property from thieves would be an official law enforcement activity. It doesn’t say official activities of law enforcement agencies. It doesn’t say anything about who is officially enforcing the law and last I checked, there still is such a thing as a citizen’s arrest.

btr1701 (profile) says:

Re: Re: Security cameras

Technically, protecting your personal property
> from thieves would be an official law enforcement
> activity.

Technically, no it wouldn’t, as you are not a law enforcement officer or agency.

The author is correct, this is glaring legal hole in the law that could impose criminal liability on private property owners for having a video security system.

John Fenderson (profile) says:

Re: Re: Security cameras

Technically, protecting your personal property from thieves would be an official law enforcement activity

I don’t think so. “Protecting your person or property” not in the job description of the police at all, and at least one court has ruled the police have no obligation to do anything of the sort.

The police come in after the crime is already committed.

Anonymous Coward says:

Re: Re: Re: Security cameras

To clarify my statement: I was stating that a person acting to protect their personally property against an illegal theft would be an “official” (read: sanctioned by law) “enforcement” (read: to prevent the breaking of a law by another) “activity” (read: action to accomplish the prior mentioned enforcement) regardless of whether the person committing the activity was a official law enforcement officer or not.

John Fenderson (profile) says:

Re: Re: Re:2 Security cameras

I realized this after I read btr1701’s reply. So, let me correct my statement and say: btr1701 is correct. If you are not a law enforcement officer then your actions are not an official law enforcement activity.

Your mentioning citizen’s arrest is a case in point: while there is such a thing as citizen’s arrest, it must be done in the presence of an actual law enforcement officer to actually count for anything.

Anonymous Coward says:

Re: Re: Re:3 Security cameras

The whole point of a citizen’s arrest is that citizen can help enforce the law when a law enforcement officer is not available. Once a law enforcement officer is available deferral to their authority to handle the situation is commensurate. Also part of the reason for the 2nd amendment is that you are authorized by law to protect yourself and your property when law enforcement is not available. Your assertion that for a citizen’s arrest has to be made in the presence of an officer makes no sense whatsoever.

I realize I was making an argument based on a semantic interpretation of what was written that was contrary to the intended interpretation of the written words of the law. I was merely pointing out that it COULD be interpreted to mean something completely different as it didn’t mention at all who was performing the enforcement activity only that the activity was official which can be argued that since you are specifically allowed to perform these duties in absence of an officer, they therefore could be considered official.

John Fenderson (profile) says:

Re: Re: Re:4 Security cameras

The whole point of a citizen’s arrest is that citizen can help enforce the law when a law enforcement officer is not available.

Kinda-sorta. Read up on this topic, it’s actually very interesting. Citizen’s arrest isn’t what most people think it is.

Citizens have no arrest powers, so the police presence is required at the time the arrest is made.

part of the reason for the 2nd amendment is that you are authorized by law to protect yourself and your property when law enforcement is not available.

You are authorized by law to defend yourself even when police are present. But that doesn’t make it “official law enforcement action”.

I was merely pointing out that it COULD be interpreted to mean something completely different

Colloquially, yes. But all of these concepts and terms are “terms of the art” and have very specific, well-establish meanings. They aren’t actually open to other interpretations in court.

out_of_the_blue says:

Minion focused on exceptions rather than definition:

to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60 [violent crimes], during its commission.” — Says plainly that foreknowledge is KEY element: your Chicken Little weenie rant notwithstanding.

Besides that, case law is clear on the everyday uses. This applies only with foreknowledge to record a crime yet to be committed.

But thanks for good cause to use this tagline:


Mike Masnick on Techdirt: “its typical approach to these things: take something totally out of context, put some hysterical and inaccurate phrasing around it, dump an attention-grabbing headline on it and send it off to the press.”

05:11:06[g-122-6]

Karl (profile) says:

Re: Minion focused on exceptions rather than definition:

Says plainly that foreknowledge is KEY element

Oh, you’re making stuff up again.

No, that section says absolutely nothing about foreknowledge. Let’s put that emphasis where it really belongs:

“to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60 [violent crimes], during its commission.”

So, no, you don’t need “foreknowledge,” you just need to film a crime as it’s being committed – whether you have any association with the criminal or not.

As usual, you’re wrong.

TasMot (profile) says:

Re: Minion focused on exceptions rather than definition:

You are not using a “Legal Reading” of this line. You tried to add too much common sense which doesn’t work with reading the law. There is a big “OR” in there. “to produce or create”, “OR”, “conspire to produce or create”. If either side of that big “OR” is true, then that whole part is true. So,it will be read by the willing prosecuter as “to produce or create … a video or audio recording … representation of a violent crime … during it’s commission” then you are charged. This is the reality of the way it works. It is not made up by Mike, which makes your Mike bashing for today totally self-gratifying with no basis in reality.

Anonymous Coward says:

Re: Re:

that would be accendintal or incidental recording therefore not a problem, and you would have to commit a violent crime, not just “a crime”. and be convicted of that violent crime.

Funny how now its ‘all crimes’ and not violent crimes and how you also ignore the actual words of the legislation.

If you record a police officer arresting someone who committed a violent crime (alleged) you have not recorded THE CRIME (during its commission.) or any crime, unless the police are charged and convicted of committing a violent crime during the arrest that you recorded.

How many ways can TD and fanboys misinterpret such a simple thing ??

Brazenly Anonymous says:

An easy defense to get the whole law thrown out

Subsection B would necessarily cover the court proceedings where the recording is entered into evidence, yet subsection D contains no clause exempting the judge or other court personnel. Should the law go into practice as written, it should therefore be fairly easy to get a prejudiced summary judgement declaring law unconstitutional under the first amendment.

aldestrawk says:

Re: Re:

Firstly, I would think a home security camera recording would not fall under this law because the recording is incidental. At least in my view it is incidental although I can see how it could be argued that it wasn’t. I would also presume that if someone was charged because their home security camera caught a burglar, the public outcry would be tremendous.
Given that,let’s get to the comparison. Take a look at South Carolina law and be impressed at how harshly burglary is punished. Since this recording law only is triggered for 1st and 2nd degree burglary, (I don’t really see how this type of burglary is automatically considered a violent crime but South Carolina does) the comparison must start there. 2nd degree burglary is punishable by up to 15 years imprisonment compared to a 5 year max for recording it. 1st degree burglary, which includes night-time burglary with no priors, is punishable by an amazing minimum of 15 years to life.

Travis says:

Re: Re: Re:

It wouldn’t be incidental. The intent of putting a security camera up is to record criminal activity so that the perpetrators can be found and arrested. An example of an incidental recording would be if you were filming something else (birthday party, weather, etc) and a crime happens in the frame. Heck, turning the camera or zooming in to get a better picture of the crime means it would no longer be incidental.

As vague as this law is, it will be abused. This would just end up being one more tool to suppress those trying to hold corrupt cops and other officials accountable for their actions.

It will also have no effect in preventing its stated purpose. The people its intended to punish are already conspiring to commit a felony, this would just add more charges.

When the wording of a law/bill is so vague and the exceptions so narrow that you cannot be reasonably certain such simple actions as installing security cameras on your own property won’t send before a judge and jury, the law/bill must be removed.

Eldakka (profile) says:

Re: Re: Re: Re:

It’s not a ‘security’ camera.

It’s a safety camera to monitor the ‘safety’ of people in case they hurt themselves so you can call an ambulance.

Or it’s an ‘auditing’ camera to keep a log of all who enter/leave the premises.

Or it’s a ‘historical’ camera, so it can be included in my memoirs/family video library.

Shaun Wilson (profile) says:

Re: Re: Re:

Firstly, I would think a home security camera recording would not fall under this law because the recording is incidental.

Actually, with regards to a security camera the recording of your neighbors walking their dog is incidental but the entire purpose of a security camera is to catch criminal activity – ie you are “conspiring to produce or create” a recording of any criminal activity that happens to take place in view of the camera.

Anonymous Coward says:

Re: Re: Re: Re:

Not necessarily. You can put up a security camera for a lot of different reasons. People these days use security cameras just to monitor their property remotely at times just to make sure everything is ok, check that they turned off lights, make sure pets aren’t tearing things up, etc. If that is the stated purpose for the cameras, then a crime happens which is then caught on tape, they recording of the crime would absolutely be purely incidental.

Shaun Wilson (profile) says:

Re: Re: Re:2 Re:

If you just leave your computer on with a webcam pointed at your pet basket when you go on holiday, or have a baby monitor that includes video (though not a nanny cam) and that happens to catch a recording of a criminal act then you probably would be able to argue that the recording is incidental (and hope that any cops and judges you encounter aren’t having bad days). However the point of a security camera is generally for security. Good luck convincing anyone that the real purpose for your security camera is to check if you remembered to turn the light off, even if you use it for that purpose far more often than for recording criminal acts.

Anonymous Coward says:

Re: Re: Re:2 Re:

the incidental aspect is from the perspective of the camera or the recorder, not from the ‘incident’, a camera on all the time will by definition incidentally capture every image.

not to say that this law is anywhere near to perfect, in theory if you see someone assault someone else in public and you record it for the police, you could be charged, but the intent of the law is clear, but part (B) sorts it out, you are able too (and should) record a violent crime and you can, but you are not allowed to publish it, yes can give it to the police (that you called when you saw the crime start as well as record it).

you simply are not allowed to get your camera, and deliberately record a crime you know is going to happen and be a party to that crime, there is now a specific law against that.

G Thompson (profile) says:

Re: Re: Re:2 Re:

So you are saying that it is entirely incidental that you filmed a criminal act on the camera thats dual purpose is 1 – to have evidence of any untoward acts happening where the camera is facing; 2 – for the psychological deterrence of those acts by the physical presence of the camera in the first place.

uhuh

Anonymous Coward says:

Re: Re: Re:3 Re:

“for the psychological deterrence of those acts by the physical presence of the camera in the first place.

yes, that would be “official law enforcement”, to ‘deter’ a crime is to enforce a crime, so if the camera is there to officially deter crime it is ‘official law enforcement’.

G Thompson (profile) says:

Re: Re: Re:5 Re:

it’s not ENFORCING a law since it is NOT an officially authorised devise for law enforcement purposes. And I am using authorised in the full legal definition and interpretation.

You are conflating “law enforcement” with “civil enforcement of property and/or personal rights” they are TOTALLY different.

If there was any doubt to what ‘authorised’ means then yes there might be ambiguities you could deal with within court, but as the law states there is absolutely no ambiguity with what is and what is not authorised. That’s the whole problem with the thing.

Anonymous Coward says:

It won't withstand one 1st amendment test

Freedom of the press is a right granted to EVERY CITIZEN not just “bonefide news gathering” organizations. Freedom of the press is about the right to disseminate information on a broad scale. The word “press” in the term refers to using a printing press which was the method used at the time to disseminate information. It’s not “freedom of the Press” referring to the collection of established news organizations.

John Fenderson (profile) says:

Re: Re: It won't withstand one 1st amendment test

So far, the courts have not interpreted “freedom of the press” in that way. They interpret it as the AC described. There isn’t even any legal mechanism to decide what is or is not a “bona fide news gathering operation”, because that distinction isn’t an important one. There has been various legislative proposals to change that, but none of them have resulted in law so far.

Anonymouse says:

We’d still be able to ‘watch’ those shows. However, using TiVO or a VCR (old recording tech… google it lol) to make a copy of said shows would constitute a felony. So then, would making any digital conversion of a video ‘creating a digital electronic file’. Would the ‘other visual depiction’ also make it a felony to draw any sort of violent scenes? Would this make comic book creation a felony!?

Anonymous Coward says:

Re: Re:

“Would this make comic book creation a felony!?”

Between Superman “Grounded”, Avengers Academy, Spider-Man’s one-two punch of “One More Day” and the final storyline that led to “Superior Spider-Man”, and literally everything Mark Millar has ever done…maybe it should be, in certain cases.

Like maybe only Morrison, Posehn, Moore and Ellis should be allowed to write comics, maybe Geoff Johns if he’s had his medication for the day.

I kid, I kid.

OldGeezer (profile) says:

It’s not really a bad idea to pass a law very specific to the practice of these knockout videos. Is this guy so dense that he couldn’t narrow it to specify that if it can be proved that someone conspired to commit an aggravated assault in any way, including the planning and recording of it they would both face the same charges? It seems to me that this would already be covered by existing laws.

John Fenderson (profile) says:

Re: Re:

It’s not really a bad idea to pass a law very specific to the practice of these knockout videos

I think it is, actually. First, there’s an obvious first amendment issue involved. But, ignoring that, we should want to encourage criminals of every stripe to record their activities, not discourage them. Recordings are evidence that make investigation and prosecution easier.

OldGeezer (profile) says:

Re: Re: Re: Re:

These vicious attacks are planned and carried out by groups of people. Everyone seen in the video that are obviously participating should be charged with conspiracy along with the attacker and the cameraman. Striking someone with sufficient force to knock them unconsciousness can result in brain damage or death. People this sociopathic that they would do this just for amusement deserve prison time.

John Fenderson (profile) says:

Re: Re: Re:2 Re:

Striking someone with sufficient force to knock them unconsciousness can result in brain damage or death.

Yes. This gets glossed over, and lots of people don’t really understand it (because movies portray it as more benign, I think), but if you’ve struck your head hard enough to make you lose consciousness then you HAVE suffered some amount of brain damage. You can’t have one without the other.

Being rendered unconscious by impact is actually a very serious medical condition.

OldGeezer (profile) says:

Re: Re: Re:3 Re:

For this reason at least some individuals involved in these attacks should face very serious charges from attempted manslaughter or attempted murder. If the victim dies it should be second degree murder. In commission of most felonies when someone dies everyone gets a murder rap right down to the getaway driver and the lookout. On The First 48 they often make suspects believe they are not in as much trouble if they didn’t pull the trigger to get these idiots to admit they were there. The detectives watching the video of they interview high five each other when they get these admissions.

V says:

Fake Crimes

Not only will it be criminal to record criminal activity, it will also be criminal to create a graphic novel depicting criminal acts, depict a criminal act in a play, movie, television show or YouTube video, or perform a classic Punch and Judy routine. “Visual depictions” of fake crime? Also a crime.

I don’t think this is the case. The proposed amendment states:

“It is unlawful for a person to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60 [violent crimes], during its commission.”

Therefore, an actual crime, not a fake one for entertainment, would have to have been committed.

I am more concerned with the law enforcement aspects however. LEOs can record you for their protection, but it is illegal for you to record them committing a crime against you (or someone else). It might be interesting to see a case in court though. If an LEO takes a recording because it depicts a crime, could it be construed as an admission of guilt?

http://www.techdirt.com/articles/20130827/09282724323/not-content-with-gutting-fourth-amendment-government-continues-its-attack-fifth-sixth.shtml

I’m probably being optimistic, as likely the accused would say that he/she wasn’t the subject of the video and it becomes his/her word against yours. ๐Ÿ™

Karl (profile) says:

Re: Fake Crimes

I don’t think this is the case.

Read it this way:

“It is unlawful for a person to produce or create […] [a] visual depiction or representation of a violent crime […] during its commission.”

It doesn’t have to be a depiction of an actual crime happening; just a “visual depiction or representation” of a crime happening.

At the very least, it could be read that way by a prosecutor. Meaning that eventually it will be, if the law passes.

Anonymous Coward says:

Re: Re: Fake Crimes

why do you ignore the “DURING ITS COMMISSION” part?


It doesn’t have to be a depiction of an actual crime happening;”

well yes it does, when “DURING ITS COMMISSION” is in is proper place.

your trying to say something like “how could I have murdered that person, he is dead!”
completely disregarding the fact he is dead because you murdered him. the “you cant kill a dead person” argument loses steam.

Anonymous Coward says:

So let me get this straight.

There’s a couple of suspicious-looking guys. One of them gets his smartphone out and starts recording the other one. I’m across the street, and I get out my smartphone too to record what they do. One of them assaults someone and they both run off.
I call 911 for the injured person, then go to the nearest police station to report the crime and turn over the evidence.

They throw me in jail.

Anonymous Coward says:

Re: So let me get this straight.

as they were “suspicious-looking’ and you decided to record them you would be considered as ‘official law enforcement activities’.

as you recorded is specifically for law enforcement, your already calling it ‘evidence’!

you see a couple suspicious-looking guys, you record them, its officially law enforcement.

Anonymous Coward says:

Re: Re: Re:3 So let me get this straight.

“you have ot be an “official law enforcement officer”.

no that’s not how it works, ANY means ANY, if you call the police and initiate law enforcement officers, that is “ANY OFFICIAL LAW ENFORCEMENT ACTIVITY” the OFFICIAL activity is you calling the officials.

ANY LAW ENFORCEMENT ACTIVITIES… means …

ANY LAW ENFORCEMENT ACTIVITIES, therefore you call the police tell them you recorded a crime, you have taken an action for initiate law enforcement.

If you were charged as you say, and you could not find 10,000 second rate lawyers who tear the Court a new one for charging you for turning over evidence of a crime under this law I would be surprised.

if it had of mean ‘official law enforcement officer’ it would have said that (in fact it did in sect (b)), so that is already covered.

ANY LAW ENFORCEMENT ACTIVITIES, would also mean security guards, CCTV cameras etc.
They are there to deter and enforce the law, they form what would be considered “ANY”. (ANY is quite broad)….

Anonymous Coward says:

Re: Re: Re:3 So let me get this straight.

so private citizens cannot do any law enforcement ?

that’s not right, but “official” means here that you take your case to the POLICE, you going to the police is the official act,

a law enforcement activity is going to the police and helping them enforce the law,

look up the definition of “official” as well, will help a bit, and possibly “ANY” as well, I don’t think you quite get the meaning of that little word.

Zonker says:

Re: Re: Re:

Then by your argument, the law could not criminalize the activities it was written to address as it would be rendered moot. All video of a violent crime is evidence of that crime and by your argument that makes it an official law enforcement activity, even if taken by the perpetrators themselves. Law negated.

Zonker says:

Re: Re: Re:2 Re:

Proving the point that video is evidence and thus by your argument an official law enforcement activity. You can’t withhold evidence if it isn’t evidence.

Police (are supposed to) search for existing evidence, not manufacture evidence after the crime occurred. Sometimes they miss or (inadvertently) lose evidence, it is still evidence.

Evidence is not evident until it is found and revealed.

Anonymous Coward says:

Re: goodbye Shakespeare

“DURING ITS COMMISSION”, CSI and Shakespeare do not have a ‘during its commission aspect, the things on CSI NEVER REALLY HAPPENED, so you are not depicting them DURING THEIR COMMISSION.

(not giant zoom in from an image of the entire city to the inside of a smoking 9mm shell casing lying next to a drop of blood), (queue sound effect).

Anonymous Coward says:

?Really this is another tool for law enforcement to use to make sure that somebody can’t claim, ‘Oh, I didn’t commit that crime, I just videotaped it,’ when in reality they were part of the problem in the first place.”

Frankly, law enforcement doesn’t need any more tools when they have already shown that they cannot correctly and responsibly use the ones they have already been given.

Brazenly Anonymous says:

Re: Re:

The first reaction? Let’s say the cops have been called and it is clear that the overwhelming force is on the other side. The only thing left that you can do is to obtain a recording to enter into evidence to ensure that the assailants can’t return later (due to being behind bars).

Even if it were to be the first reaction, it most certainly shouldn’t rank as a felony.

Anonymous Coward says:

Re: Re:

“(4) any official law enforcement activities; “

the giveaway, should be “give to the police or use in a civil suit”.

Violent crime is handled by the police not civil courts.

A video recording of a violent crime “TO GIVE TO POLICE” is clearly for the purposes of “ANY OFFICIAL LAW ENFORCEMENT ACTIVITIES”.

So much for that argument…. next !

Zangetsu (profile) says:

NSA

OK, we have to talk about the NSA. So, if you take a picture of someone talking on a cell phone, and the NSA intercepted that cell phone call, but did it illegally, then your taking a picture now makes you an accessory to a crime and you have now committed a felony. Since we know the NSA does collect metadata this means that every picture of cell phone usage is now related to a felony and the NSA can now claim that all of those users are now potential terrorists (just one tiny step from felon to terrorist) so they can now legally spy on everyone who takes pictures.

So, this is really an NSA supporter bill. I am impressed by the convoluted nature of their schemes.

Anonymous Coward says:

Re: Re:

if it was recorded in South Carolina it would not matter where the source of the video was obtained from.

its not the video that is the crime, its the crime that is the crime.

would not matter if the video came from the moon, if it was recorded in SC it falls under SC law.

TD should not be your sole source of legal knowledge or understanding, you may find them lacking.

Anonymous Coward says:

Re: Re: Romanaian websites are not subject to South Carolina Law

Nope

222.ro is in Roamania, therefore the site owners are only subject to Romanian law, and, therefore, cculd never be forced to reveal the IP address where a video came from.

The owners of 222.ro, in Romania, are not subject to the laws of South Carolina, or anywhere else, in the U.S.

Anonymous Coward says:

Re: Re: Re: Romanaian websites are not subject to South Carolina Law

this law does not say how HOSTED the video is criminal, it states WHO RECORDED IT IS..

IF THAT PERSON RECORDED it in SC then he falls under SC law, who give a fuck about some web hosting site in Romania. The crime did not occur in Romania, it occurred in SC, people are liable for the law where they are when they committed the crime. Goodness me !!!!

Anonymous Coward says:

Re: Re: Re:2 Romanaian websites are not subject to South Carolina Law

WHat I am saying is that 220.ro could not forced to turn over the IP addresses of whoever posted anything there. US courts have jurisdiction over 220.ro, so the South Carolina authorities would have no way to trace any postings, to 222.ro, that did violate that law.

This is why I could see such recordings being posted to offshore sites that cannot be forced by US authorities to hand over any user information.

Not an Electronic Rodent (profile) says:

Is it enforceable?

IANAL, but it occurs to me that if this became law it would be all but unenforceable.

It is unlawful for a person to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime,(Emphasis mine)

In order to be arrested for filming a violent crime, the perpetrator would have to be tried and convicted first, would they not? If no conviction is secured, it wasn’t a violent crime that was filmed and therefore not illegal. So technically they’d have to defer a prosecution under this statute until after the act it depicts, which doesn’t sound too practical to me…

Anonymous Coward says:

Re: Is it enforceable?

that’s exactly right and that is the intent of this law, not to stop filming of police or any such thing, it is to stop this stupid one punch thing, and other stupid people who get their jollies beating other people and bragging about it.

The idea is you arrest and change the moron punching the other person AND all his idiot friends who think its cool to potentially murder people in the name of ‘fun’.

Recording a police officer arrest someone is still legal, unless the police officer wants to face charges of violent crime himself.

Not an Electronic Rodent (profile) says:

Re: Re: Is it enforceable?

that’s exactly right and that is the intent of this law

No, you missed my point. As I see it, in order to actually prosecute someone under this law, you’d have to wait until the actual perpetrator was convicted. Depending what “violent crime” you’d filmed, this could be a while.
Is it seriously practical to arrest a citizen and then not give them a fair trial for an unknown amount of time while you find out if you even have any basis for the prosecution? Is it even legal to arrest someone without having sufficient evidence of a crime?
Imagine a murder arrest where the police could claim “we’re pretty sure you murdered and buried someone in the park but we don’t have a body so we’re going to arrest and hold you while we dig up the park to find out if there is really a body… shouldn’t take us more than a couple of years to be sure.”

Anonymous Coward says:

Re: Re: Re: Is it enforceable?

as the person recording is complicit and probably acting in a conspiracy with the perp, then they probably would face the same court.

so you might be bailed or not, but you face the same justice system, and if the main offender was found innocent, so would you be.

I don’t see what your issue is sorry, you would be charged, but nor found guilty or innocent until Court.

it is possible the person could be found guilty of a violent crime and you innocent, but not possible for him to be found innocent and you guilty if you filmed it.

either way you will both face due process (charges, bail, Courts etc).

Anonymous Coward says:

Re: Re: Re: Is it enforceable?

same with conspiracy laws, first you have to show a crime, then you have to show a conspiracy took place. You cannot be charged for a conspiracy to commit a crime if no crime was committed (or planed).

so prosecution would first have to prove the crime, and then set out to prove conspirators (or recorders) to that crime.

Anonymous Coward says:

Re: Re:

you have not done a violent crime unless charged and convicted for a violent crime, the arresting police office would have to prove that (HE) committed a violent crime (during the arrest you recorded) in order to charge you for recording it.. Do you think that is going to happen..

Police officer to judge, “I want to charge him for recording a violent crime”. Judge “what crime”
Police officer “me arresting a suspect”

Police officer “I want you to charge me for a violent crime”
Judge “WHY ?”
Police officer “So I can charge this guy for recording me”
Judge “Fuck off, you are a moron”.

Anonymous Coward says:

this law does not say you cannot film police

if they are arresting someone, and you film it the police are not committing a violent crime, and for you to be arrested for filming them, the police would have to in-turn be charged for a violent crime.

If you record a person running down the street chased by 6 police officers, are you recording a violent crime ??

for the police to be able to charge you for recording a ‘violent crime’ they would have to also prove a violent crime is what you recorded.

Do you think the police would be willing to admit they were committing a violent crime in order to get you in trouble for recording it?

Zonker says:

Re: Re: Re:

And nothing I listed would be considered a news gathering activity. Investigation Discovery does reenactments of violent crimes to entertain their audiences. Many Lifetime movies are fictional dramas depicting violent crimes to entertain. And finally, the animal abuse commercial is… a commercial… thus not even remotely a news gathering activity (do you really think that something like “OxyClean gets the stains out” is a news story?).

Zonker says:

Re: Re: Re:2 3 words for you

Yes, they record a depiction of a violent crime as it is being committed. They don’t give the background then skip the crime scene and go straight to the investigation or dramatic aftermath.

And if you don’t think that the overly aggressive prosecutor isn’t going to argue that at your trial and have a good likelihood of success then you must be new to how things work here in the USA. (See Carmen Ortiz (US) vs. Aaron Swartz)

Anonymous Coward says:

Famous Examples

Examples of Offenses (if committed in SC after this law would be passed):

This would land a certain Paul Revere in Jail: http://upload.wikimedia.org/wikipedia/commons/e/e1/Boston_Massacre_high-res.jpg

I think this might get Malcolm Browne in trouble (although the news clause might protect him):
http://upload.wikimedia.org/wikipedia/en/3/38/Th%C3%ADch_Qu%E1%BA%A3ng_%C4%90%E1%BB%A9c_self-immolation.jpg

Hmmm… Anything related to Syria (citizen journalism isn’t journalism craziness).

Maybe even the artist of this painting of the First Battle of Fort Sumter:
http://upload.wikimedia.org/wikipedia/commons/0/05/Sumter.jpg

Anonymous Coward says:

Faking Knockout Suing for False Arrest

Although I am betting (where its legal to make such bet) that most of the idiots knocking out unsuspecting citizens minding their own business don’t have the $500 to $5000 dollars it would take to clear the fine, I am not so sure this won’t turn into a bigger fiasco when the game goes fake.

Anon says:

Typical Stupid Politician

Umm… Isn’t this already illegal?
Someone who accomapnies a person with the intent to record their attack on a third party, is an accessory to the crime of assault. It should be evident from content and psoitioning that the recording was a deliberate attempt to record a prmeditated assault, that the recorder knew what was going on beforehand.

that’s already a crime. if penaltis for assault do not give enough leeway to punish an accessory, raise the penalty.

We don’t need a dozen new laws to add to the current one. This simply gives the DA the opportunity to add charges, the classic Aaron Schwartz play – “look, we got you on 30 charges, 374 years max. for that one assault. Wanna gamble with teh jury (who aren’t allowed to know the penalties, just if you’re guilty) or make a deal to boost my conviction rate the easy way? We’ll drop 25 of the charges, “

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