It's 2013, and despite oft-abused wiretapping laws being found unconstitutional when applied to recording police and new policies being issued to deter law enforcement officers from persecuting/prosecuting camera-wielding citizens, further incidents occur daily showing many PDs just aren't willing to cede this battle yet.
In this instance, a Lancaster, PA police officer simply walked away from taking an accident report because he objected to being filmed.
A Pennsylvania cop responding to a report of an accident refused to talk to the citizen unless his friend turned off the camera.
The citizen insisted on his friend recording, so Lancaster police officer Philip Bernot walked back to his car and drove off, refusing to take the report.
The citizen said he called the desk sergeant to complain, but was told it is a departmental policy not to be recorded.
Is it actually against departmental policy for Lancaster police officers to be recorded while performing their public duties (in public)? Well, that all depends on how you translate Pennsylvania's wiretap act, which aligns closely with the (formerly) onerous statute in place in Illinois. According to this 2007 Lancaster PD policy manual update
, Pennsylvania citizens have the right to record video but not
audio, unless both parties consent.
It starts out promisingly.
It is the policy of the Manheim Township Police Department to recognize the legal standing of members of the public to make video/audio recordings of police officers and civilian employees who are carrying out their official police duties in an area open to the public, and by citizens who have a legal right to be in an area where police are operating, such as a person’s home or business. However, this right does not prevent officers from taking measures to ensure that such activity and recording does not interfere or impeded with the officer’s law enforcement and public safety purpose.
The right to record audio and
to be guaranteed, provided there's no interference of police business (a huge gray area), and would seem to cover the contentious recording that caused an officer to walk off the job, as it were. But later in the same statement, this guarantee is undercut by a reference to Pennsylvania's wiretap act, providing every Lancaster police officer with a very convenient out.
The courts have made a distinction between simply videotaping an officer and videotaping with audio. When a person is out in public, he or she is voluntarily presenting their visage to the public and therefore can have no expectation that someone may photograph that person’s actions. However, when a person engages in discourse with another, as provided in the Wiretapping and Electronic Surveillance Control Act, 18 PA C.S.A. 5701, et seq. (“Pennsylvania Wiretap Act”), that person is entitled to expect that the discourse will remain private and not be shared with others through a recording device unless specifically consented to by the person speaking.
In order to ensure the state's (outdated) wiretap act isn't violated, those involved must jump through the following hoops.
If the officer would normally have an expectation of privacy and the officer observes the person being addressed audio taping or videotaping with audio, the officer may inform such person that he or she does not consent to the audio portion of the taping and request that the audio be shut off.
Following up on a reported accident on a public street would seemingly eliminate any "expectation of privacy," even for audio. Officer Philip Bernot felt otherwise, and chose to read the policy as being heavily reliant on this phrase in the preceding paragraph:
However, when a person engages in discourse with another… that person is entitled to expect that the discourse will remain private and not be shared with others through a recording device unless specifically consented to…
These two parts of the policy are at odds with each other and, indeed, with the opening paragraph that states the department recognizes the public's right
to record video and audio
of public servants performing their duties in public -- all of which Officer Bernot was
doing, right up until he decided he wouldn't.
Pennsylvania's wiretap law
provides plenty of exceptions for law enforcement and certain
citizens to record audio with only the "consent" of the recorder (telemarketers, people discussing work with contractors) but it provides nothing specific regarding the general public recording public citizens. On the bright side, the wiretap law is set to expire at the end of this year
(it was last amended in 2002 -- problematic enough given the exponential increase in citizens who carry cameras everywhere they carry their phones). Unfortunately, it looks as though renewing it completely intact is an option ("...unless extended by statute").
But is the Lancaster PD's contradictory reading of the wiretap statute accurate? Does it actually mean the public has no right to record audio of police officers without their consent, while completely free to record video and take photos? The Reporter's Committee for Freedom of the Press has a rundown on every state's applicable recording statutes and it comes to this conclusion regarding Pennsylvania's
It is unlawful to record an “oral communication,” which is defined as “any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation” without first obtaining the consent of all parties engaged in the conversation. 18 Pa. Cons. Stat. Ann. § 5702. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.
If a journalist is allowed to record "oral communications" in public without consent, it stands to reason citizens should be allowed to do the same. Lancaster PD may be deterring recordings by providing a confusing mess of a policy, but its interpretation of the wiretap law is flawed. The PD may have its own departmental policy, but it's superseded by state law governing recordings.
The constitutionality of this law won't be stress tested until there are multiple incidences of abuse, unfortunately. In Illinois, it took several high-profile cases of police and prosecutorial abuse before it reached the critical level needed to prompt a ruling from the Supreme Court. A single case, properly routed, could
have the same effect, but there's an equal likelihood the courts would view it as a departmental anomaly rather than a flaw with the underlying law. On the other hand, Illinois' nearly-identical wiretap law has been struck down, meaning there's some sort of comparative ruling, even if there's not actual precedence.
The Lancaster PD is misusing the wiretap statute, one that the original legislators never meant to be utilized as a shield against public accountability. Officer Bernot's refusal to perform his duty, whether "justified" by a bad statute or not, was completely immature.
[UPDATE: A commenter points out
that the Lancaster Police Dept. apologized for Officer Bernot's actions and sent him back out to take the accident report