Police Use HIPAA To Justify Charging Citizen For Recording Them

Legal Issues

from the well-that's-just-bullshit dept

At some point, some national group is going to have to get the memo out to local law enforcement agencies within the United States that it is perfectly legal to record them while they operate in public. We've seen case after case after case of citizens having their property taken away or being charged with trumped up crimes all because they pointed a recording device at the police. Hell, some states have tried to enact unconstitutional laws to back up their ill-conceived and unwarranted positions.

All that being said, you just have to hand it to a police force up in Minnesota for the sheer cajones it took to do what they did. It started as other stories have, with a citizen, Andrew Henderson, recording police as they frisked a bloodied man before he was loaded into an ambulance and then having an officer take his recording device away.

The deputy, Jacqueline Muellner, approached him and snatched the camera from his hand, Henderson said.

“We’ll just take this for evidence,” Muellner said. Their voices were recorded on Henderson’s cellphone as they spoke, and Henderson provided a copy of the audio file to the Pioneer Press. “If I end up on YouTube, I’m gonna be upset.”

We’ve seen this kind of thing before, of course. Police use the excuse of evidence collecting to take away recording devices, which is really the only thing they’re interested in. It’s wrong. We get that. Usually some kind of internal review of the incident is triggered, asses are officially covered, and then the recording device is returned, sometimes after having been wiped. It’s a bad enough story as it stands.

And that scenario is almost exactly what happened here, as the spokesman for Ramsey County acknowledged in a quote that citizens have the right to record police. But everyday abusive practices aren’t enough for Ramsey County officers, apparently. The only thing that will satisfy them appears to be a new level of bullshit hitherto unseen, because a week later, when Henderson went to retrieve the camera, the police charged him with disorderly conduct and obstruction, with the citation noting that this was due to a “Data privacy HIPAA violation.” In case you aren’t clear on this, in the blogging industry, we refer to this as a massive amount of bullshit (piles and piles of it).

The allegation that his recording of the incident violated HIPAA, or the federal Health Insurance Portability and Accountability Act, is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School. The rule deals with how health care providers handle consumers’ health information.

“There’s nothing in HIPAA that prevents someone who’s not subject to HIPAA from taking photographs on the public streets,” Granick said. “HIPAA has absolutely nothing to say about that.”

The kicker? The deputy who had taken the camera for “evidence” purposes erased all the footage. The exchange in which she took that camera was audio recorded by Henderson separately on his cell phone, a recording which he still has. I would suggest that if the police do not immediately rescind their trumped up charges against him, Henderson should insist that we take the deputy at her word, assume she collected the camera and its footage as evidence, and then we can all begin discussing how much prison time the deputy should be doing for destruction of evidence and obstruction of justice.

That’s no more crazy than anything the police have done in this story.

Filed Under: hipaa, overreaction, police, ramsey county, recording