New York State Legislature Pushing Bill That Would Criminalize Recording Children Without Their Consent

Policy

from the so-any-time-someone-doesn't-want-to-be-filmed? dept

This is definitely more “for the children” thinking. That is, the kind of thinking that figures anything is ok, so long as it can be portrayed as making children safer. This bill making its way through the New York state legislature probably won’t make many (or any!) kids safer, but it’s already gathered the sort of attention politicians truly crave: the endorsement of a celebrity.

Media law experts and public defenders are concerned about a proposed state law that would criminalize annoying people under 18 or photographing them without their consent. They say that the proposed legislation, sponsored by state Senate Judiciary Committee Chair Brad Hoylman-Sigal and backed by actress Emma Stone, will violate journalists’ First Amendment rights and could involve more youth in the justice system.

Winning the support of constituents is for losers. Securing the support of celebrities is what really matters. It’s no surprise an actor would support a bill like this, since it’s pretty much paparazzi-bane, at least for celebrities (1) residing in New York, and (2) who have children.

For the regular people, it probably won’t mean much. For residents curious about how local law enforcement and prosecutors will define “intent,” it might mean a bit more.

The proposal was always a bit problematic. It criminalizes the photography of children without their consent. It is tied to intent, at least, but only very loosely:

The current version of the bill defines “harassment of a child” broadly, stating that “a person is guilty of harassment of a child when he or she intentionally or knowingly harasses, annoys or alarms a child or a child’s parent or guardian by” shoving them, following them, recording their image or voice or committing other acts that “seriously annoy” a child.

And it’s slightly better than it was before people raised the most obvious question: what about kids participating in public or newsworthy events? Something that should have always been in the proposed legislation was only added after non-lawmakers starting poking holes in the bill [PDF].

After City & State initially asked Hoylman-Sigal for comment on these critics’ concerns, his office released an amended version of the bill, which includes language clarifying that it is not a violation of the law if someone “acts in a reasonable manner and the recording is of the child: (a) engaging in public speech or demonstration; or (b) attending or participating in a newsworthy public event.”

That’s better, but why the stipulation to “act in a reasonable manner?” Wouldn’t any documentation of these scenes be considered “reasonable,” especially when it involves public and/or newsworthy events?

Senator Hoylman-Sigal says everything is “reasonable.” Well, not the acts of theoretical lawbreakers, I guess, but his bill, which he says is nothing more than a competent mimeograph of a decade-old law in California. But there are significant differences, and they’re the sort of differences that matter, as has been pointed out by the president of the New York News Publishers Association, Diane Kennedy.

“The California law has a lot of provisions in it that require that a person who wants to file a complaint show that they felt threatened, their children felt threatened. There’s a lot of intentionality language in there that is missing in Sen. Hoylman’s bill. Just photographing someone in public doesn’t rise to (the level) of harassment or something like that. … You have to show that you fear for your safety or you fear for your children’s safety. It’s not just someone taking a photograph of you,” she said.

That’s the problem with this bill. It would appear to allow the people who are photographed without consent to imply intent, even if the intent to harass doesn’t exist.

Worse, the determination of intent — which Holyman-Sigal says makes the bill constitutional — doesn’t appear to actually exist in the bill. “Harassment of a child” is defined as nothing more than recording a child without their consent. There are no “ands” in this list of harassment definitions. They’re all treated equally, with the last one being:

recording or attempting to record a child’s image or voice, without the express consent of the parent or legal guardian of the child, or, if the child is fourteen years old or older, the express consent of the child, unless the person acts in a reasonable manner and the recording is of the child

If that’s the legal standard for “harassment of a child,” anyone photographing anyone else’s children for whatever reason (other than the newsworthy/public activity carveout) could be considered to be in violation of the law. That it’s tied to a paragraph about intent to harass or annoy doesn’t matter much, because literally anyone could claim to be harassed simply because someone was recording them and they didn’t like it.

Aiming your home security cameras at kids you think might be vandalizing your property? Harassment. Recording teens doing stupid shit in public places in hopes of documenting criminal violations or simply shaming them into stopping? Harassment. Accidentally capture other kids in a recording of your own children? Might be harassment if the other kids (or their parents) decide to make an issue of it. The law allows victims to set the parameters for lawbreaking. There’s nothing in the proposal that even suggests some sort of objective standard will be applied by prosecutors or police officers.

It’s not law yet. But it’s headed in that direction. And objections to the law, while being given some attention by those pushing the bill, don’t appear to be persuading legislators to drop the legislation entirely. It’s not that opponents want to be able to harass children without fear of repercussion. It’s that they want to be able to do the sorts of things normal people do all the time without fear of being fined or jailed. That’s not a lot to ask. This bill can possibly be salvaged. But it’s going to take far more than a common sense concession to newsgathering to save it.

Filed Under: 1st amendment, brad hoylman-sigal, emma stone, harassment of a child, new york, paparazzi, protect the children, recording children