recording – Techdirt (original) (raw)

Stories filed under: "recording"

Federal Court Affirms Travelers Have A First Amendment Right To Record TSA Screeners

from the have-you-tried-not-being-assholes-all-the-time? dept

It’s pretty clearly established you have the right to record public servants as they perform their public duties. There are a few exceptions, but for the most part, if you’re not interfering with their work, record away. Public servants hate this, of course, but there’s not much they can do about it. Sure, they can try to use local laws to shut down recordings, but those efforts have routinely been rejected by federal courts.

Enter the TSA and some agents who felt they shouldn’t be recorded doing their work. The TSA may believe it’s doing valuable national security work that can’t be recorded by third parties, but it’s actually doing nothing of the sort. There’s nothing inherently secret about a pat down in the screening area, which is something that happens all the time and often can be observed by everyone else in the area.

The TSA agents in this case [PDF] felt they had a right to not be recorded. That’s not actually a thing, as the court reminds them. (via the Volokh Conspiracy)

The plaintiff, Dustin Dyer, and his children cleared initial screening. Dyer’s husband did not. TSA agents began their pat down of Dyer’s husband and Dyer began his recording of them. He stood ten feet away recording the pat down. He did not interfere with the screening. Despite this, TSA agent Natalie Staton told Dyer his recording was “impeding” the agent performing the pat down. Dyer refused to stop recording so Agent Staton went and got her supervisor, Shirrellia Smith.

Smith also told Dyer he could not record the pat down. Agent Staton then asked her supervisor to “order” Dyer to delete his recording. Which he did.

_Smith ordered Dyer to delete the video while Staton watched. “Dyer deleted the recording from his phone while [Staton] looked at the screen of his cell phone…_”

The family was then allowed to leave. Staton recovered his deleted video. Then he filed this lawsuit.

The TSA claimed Dyer had no right to record TSA agents. It also said he had no cause of action and, even if he did, qualified immunity shielded the involved agents from this lawsuit.

The court disagrees. First, it points out the TSA’s work isn’t as essential as it thinks it is. It can’t dodge a Bivens lawsuit by claiming some sort of national security exemption. The court says passenger screening does not implicate “diplomacy, foreign policy, or national security interests.” Therefore, the TSA can’t have the suit dismissed on those grounds. And that keeps Dyer’s Fourth Amendment claim viable.

It also can’t have it dismissed on qualified immunity grounds. As the court points out, the TSA’s own policy allows passengers to record agents while they screen travelers.

Allowing damages in this case would not hamper TSA’s efficacy; permitting individuals to record, from a distance, TSA agents performing their duties does not limit TSA agents’ ability to screen passengers. Indeed, TSA policy allows individuals to record if they do not interfere with the screening process or record sensitive information.

The TSA argued (wait for it…) that because it does not train agents to respect the Constitution, agents can’t be sued for violating Constitutional rights. Ridiculous, says the court:

Federal officials should not evade liability for constitutional violations because their employer has not provided adequate training.

Although Bivens has never been applied to First Amendment violations, the court chooses to apply it here because it’s clearly established the public has a right to record public officials.

Courts across the country agree that incident to the “right to gather news,” citizens have some right to record government officials performing their jobs. The Eleventh and Ninth Circuits recognize a broad right to record matters of public interest. The First Circuit acknowledges a right to record government officials engaged in their duties. Four other circuits recognize a narrower right to record a subset of government officials: law enforcement officers. Considering this growing consensus, this Court finds that the First Amendment protects the right to record government officials performing their duties.

[…]

[T]he defendants’ demand that Dyer stop recording and delete the captured video plausibly constitutes an unreasonable restriction on the plaintiff’s First Amendment right…

And the right is clearly established.

According to the Fourth Circuit, “it is crystal clear that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it.” Here, Dyer sought to record, from about ten feet away, the TSA conducting a pat-down search of his husband. The TSA agents directed him to stop. Dyer’s allegations fall squarely within this “crystal clear” right.

It’s well-established people can record public officials in public. Officials can’t pretend this right doesn’t exist just because they don’t want to be recorded. This has been clear for years. The chain of events here did nothing more than convert these TSA agents from public servants to lawsuit defendants. None of this needed to happen. And none of it was justified.

Filed Under: 1st amendment, dustin dyer, recording, transparency, tsa

RIAA Tosses Bogus Claim At Github To Get Video Downloading Software Removed

from the mumbo-and/or-jumbo dept

The RIAA is still going after downloaders, years after targeting downloaders proved to be a waste of time and a PR catastrophe. It’s not actually thinking about suing the end users of certain programs, but it has targeted Github with a takedown notice for hosting youtube-dl, a command line video downloader that downloads videos from (obviously) YouTube and other video sites.

Not that this is going to be any more effective than suing file sharers. The software has been downloaded countless times and forked into new projects hosted (and distributed) elsewhere.

Github has posted the RIAA’s takedown request, which looks a lot like a DMCA notice for copyright infringement. But it isn’t actually targeting infringement. As Parker Higgins pointed out on Twitter, the RIAA — after saying a bunch of stuff about copyright infringement — is actually claiming this software violates Section 1201 of the DMCA, which deals with circumvention of copyright protection schemes.

The request lists a bunch of Github URLs as “copyright violations.” But these aren’t actually copyright violations. A little further down the RIAA gets to the point.

The clear purpose of this source code is to (i) circumvent the technological protection measures used by authorized streaming services such as YouTube, and (ii) reproduce and distribute music videos and sound recordings owned by our member companies without authorization for such use. We note that the source code is described on GitHub as “a command-line program to download videos from YouTube.com and a few more sites.”

So, it’s not really about copyright infringement. The RIAA tries to blur that line a bit by saying the source code includes a short list of videos the program can download — all three of which are videos owned by major labels. Then the RIAA goes a step further, basically claiming that any software that can download YouTube videos violates Section 1201 of the DMCA and only exists to engage in copyright infringement.

The source code is a technology primarily designed or produced for the purpose of, and marketed for, circumventing a technological measure that effectively controls access to copyrighted sound recordings on YouTube…

[T]he youtube-dl source code available on Github (which is the subject of this notice) circumvents YouTube’s rolling cipher to gain unauthorized access to copyrighted audio files, in violation of YouTube’s express terms of service,and in plain violation of Section 1201 of the Digital Millennium Copyright Act, 17 U.S.C. §1201.

This suggests the primary use of youtube-dl is to violate the law. There are plenty of non-infringing uses for this software, including the downloading of CC-licensed videos and those created by the US government, which are public domain. Basically, the RIAA is mashing up the takedown notice provision of DMCA 512 to try to remove code it claims (incorrectly) is violating DMCA 1201… while ignoring the Supreme Court’s ruling in Sony v. Universal that says that tools with substantial non-infringing uses (in that case — oh look! — a video recording tool) is not by itself infringing.

Making blanket statements like these is irresponsible and misleading, but that’s the sort of thing we’ve come to expect from entities like the RIAA. It’s the same questionable claim the MPAA made back in 2014, when it demanded third-party hosts remove Popcorn Time repositories because the software could be used to engage in copyright infringement. It didn’t make sense six years ago. It doesn’t make any more sense now.

Added to all the stupidity is the fact that the RIAA appears to be threatening anyone even loosely-connected to the youtube-dl project. A couple of contributors to the project over the years have reported they’ve received legal threats from the RIAA for working on unrelated code and maintaining the repository.

The RIAA is welcome to continue its mostly-fruitless fight against copyright infringement. But it needs to do so honestly and do it without causing collateral damage to people who haven’t engaged in infringement. The RIAA has no claim here. Github isn’t engaging in infringement or circumvention. The software isn’t either, not until someone uses it to accomplish this. If the RIAA has a problem with end users, it needs to take its complaints to them. This is just more bullshit being brought by an entity with enough heft it will rarely be challenged, even when it’s in the wrong.

Filed Under: copyright, dmca, dmca 1201, dmca 512, downloading, recording, youtube-dl
Companies: github, riaa, youtube

La Liga Fined 250K Euros For Using Mobile App To Try To Catch 3rd Party Pirates

from the goooooooal dept

Roughly one year ago, we wrote about La Liga, the Spanish soccer league, pushing out an app to soccer fans that allowed the software to repurpose a mobile device’s microphone and GPS to try to catch unauthorized broadcasts of La Liga matches. The league publicized this information, which had previously been buried in obscure language in its TOS, as mandated by the GDPR. At the same time, the league attempted to brush the whole thing off as above board, claiming that what was in the TOS informed users of the app enough that their own mobile devices were being compromised and turned into copyright snoop networks.

If this all sounds like The Dark Knight Rises for European soccer… you aren’t wrong.

La Liga apparently was wrong, however, in its claims that all of this was okey-dokey.

While controversial, La Liga felt that it was on solid ground in respect of the feature and its declaration to app users. AEPD, Spain’s data protection agency (Agencia Española de Protección de Datos), fundamentally disagrees.

As a result, AEPD has hit La Liga with a significant 250,000 euro fine for not properly informing its users in respect of the ‘microphone’ feature, including not displaying a mic icon when recording.

The data protection agency said that La Liga’s actions breached several aspects of the EU’s GDPR, including a failure to gain consent every time the microphones in users’ devices were activated.

Now, the GDPR is an absolutely useless monstrosity in nearly every instance, but it’s actions — such as those taken against La Liga — fool everyone into thinking such laughably broad regulation is necessary in the first place. For any business to somehow think that it would be a good idea to compromise the mobile devices of its customers in order to catch pubs and bars, something like fining the business via the GDPR sure makes it seem like the GDPR is doing something. This is what poisons the well, in other words.

The pro-GDPR argument stemming from this example is undercut, however, by the fact that La Liga is arguing that it modeled its actions to very specifically follow the spelled out way the GDPR enables these kinds of privacy intrusions. This too is an argument we’ve made about the GDPR.

In a statement, La Liga says it “disagrees deeply” with the AEPD’s decision and believes the agency has “not made the effort to understand how the technology works.” Announcing it will go to court to challenge the ruling, La Liga says it has always complied with the GDPR and other relevant data protection regulations. Noting that users of the app must “expressly, proactively and on two occasions give their consent” for the microphone to be used, La Liga further insists that the app does not “record, store or listen” to people’s conversations.

“[T]he technology used is designed to generate only a specific sound footprint (acoustic fingerprint). This fingerprint only contains 0.75% of the information, discarding the remaining 99.25%, so it is technically impossible to interpret the voice or human conversations. This footprint is transformed into an alphanumeric code (hash) that is not reversible to the original sound,” La Liga says.

As if another test case was needed, the outcome of the appeal will certainly be one for the usefulness of the GDPR. Because if the outcome is that La Liga actually did comply with it, all while snooping on 3rd parties using the mobile hardware of customers that didn’t really know what was happening, that should be revealing.

Filed Under: apps, copyright, gdpr, piracy, pirates, recording, surveillance
Companies: la liga

Foreign Stream-Ripping Site Wins Against Music Labels Based On Jurisdiction

from the not-like-this dept

It’s been quite frustrating to watch the music industry continually turn its legal gaze to whatever it insists is the “new” threat. From the traditional piratey-scapegoats like Napster, to torrent sites, and on to file-lockers, before finally moving over to stream-ripping sites — it’s been quite predictable, if a bit silly. As with so many industry-led crusades against technology tools, this attack on these types of sites carries with it the misguided notion that because a site or tool can be used to infringe on music copyrights, it therefore is an enemy and must be shut down entirely. We’ve seen this same tactic used against tons of technology tools that have had perfectly legal uses in the past, but in the case of stream-ripping sites, most have decided to simply fold.

Which makes it somewhat noteworthy that one foreign site is fighting back and winning against a legal challenge in the US, if only on jurisdictional grounds.

FLVTO.biz and 2conv.com, owned by Russian developer Tofig Kurbanov, remained online despite being sued by several record labels last August. Where other site owners often prefer to remain in the shadows, Kurbanov filed a motion to dismiss the case. According to the defense, the court has no jurisdiction over the matter. Only a small fraction of the visitors come from the US, and the site is managed entirely from Russia, it argued.

The RIAA labels involved in the suit disagreed, of course. As with all lawsuits of this kind, the labels merely see a tool that American users can get to, and can use to infringe, therefore it must be killed off. FLVTO pointing out that it doesn’t do anything to entice American users to its site, nor does it engage in any commercial activity on the site other than displaying advertisements, did nothing to keep the RIAA from suing. It did, however, convince the judge to toss the case on jurisdictional grounds.

“Even if the Websites’ servers knew exactly where the users were located, any interaction would still be in the unilateral control of the users as they initiate the contacts,” Judge Hilton’s opinion reads.

There could be personal jurisdiction if there’s a “commercial contract” involved. However, that’s not the case here. The site generates revenue from users through advertisements, but that’s not seen as a basis for a commercial contract, the court concludes.

In other words, an American company can’t sue a foreign operator in the US simply because the internet works as intended.

While this is a good ruling generally, it might be nice to get the courts to establish some clarity on the legal status of stream-ripping sites. Again, these are essentially dumb sites that don’t care whether the rip is infringing or not. They are a tool, nothing more. Given that, the fact that these sites are shutting themselves down under the mere threat of lawsuits represents a pretty clear chilling effect on the dissemination of otherwise legal tools and technology to the internet writ large.

This is especially true given that we already have a pretty clear precedent for this issue. Stream ripping is little different from the VCR in effect. It is taking a “stream” of live content, and “recording” it for personal use and storage. Thirty-five years ago, the Supreme Court made it clear that this was perfectly legal in the famous Sony Betamax case. In that case, the court found that there were substantial non-infringing uses of the technology — as is true of stream rippers — and that “time shifting” of content that was being streamed live was a perfectly legitimate use. As the ruling in the Betamax case found:

The question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether, on the basis of the facts as found by the District Court, a significant number of them would be noninfringing. Moreover, in order to resolve this case, we need not give precise content to the question of how much use is commercially significant. For one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their programs, and (B) because the District Court’s factual findings reveal that even the unauthorized home time-shifting of respondents’ programs is legitimate fair use.

It is difficult to see how that same standard does not apply to stream ripping as well — but so far, the RIAA (in particular) is acting as if the Supreme Court ruled the opposite way in the Betamax case, and because many of these sites are small, they have little desire to actually fight a huge, costly legal battle. And thus, the RIAA has mostly been able to kill off the modern VCR. This case turned on jurisdiction issues, which is a good start, but a clear ruling that stream ripping is legal, a la the Betamax, would be even better.

Filed Under: copyright, fair use, intermediary liability, jurisdiction, recording, stream ripping, substantial non-infringing uses, time-shifting, tofig kurbanov
Companies: 2conv, flvto.biz

Federal Court Says Massachusetts' Wiretap Law Can't Be Used To Arrest People For Recording Public Officials

from the because-duh-this-was-decided-seven-years-ago dept

Seven years ago, the First Circuit Court of Appeals released its Glik decision. This decision found that recording public officials was protected by the First Amendment, overriding Massachusetts state law. The state wiretap law says recordings must have consent of everyone captured on the recording. The Appeals Court said recording police officers while they performed their duties in public was clearly covered by the First Amendment. The opinion also dealt with some ancillary Fourth Amendment issues, but seemingly made it clear these recordings were protected activity.

The law remained on the books unaltered. Thanks to legislative inaction, the law is still capable of being abused. Since the Appeals Court didn’t declare the law unconstitutional, or even this application of it, it has taken another federal court decision nearly a decade later to straighten this out. (h/t Courthouse News Service)

The ruling [PDF] deals with two First Amendment cases. One deals with activists recording cops. The other deals with another set of activists — James O’Keefe’s Project Veritas — and its secret recording of Democratic politicians. The specifics might be a bit different, but the outcome is the same: recording public officials is protected by the First Amendment. The state law is unconstitutional.

Consistent with the language of Glik, the Court holds that Section 99 may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions.

That just reiterates Glik’s findings. The Massachusetts federal court goes further, though:

The Court declares Section 99 unconstitutional insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions. The Court will issue a corresponding injunction against the defendants in these actions.

The court also points out the state government’s response to the Glik ruling was wrong. The ruling did not limit itself to “openly” recording public officials. It said the First Amendment protected the recording of public officials performing public duties whether or not government officials knew they were being recorded.

In October 2011, the bulletin was accompanied by a memo from the Commissioner citing the Glik decision. The memo instructs officers that “public and open recording of police officers by a civilian is not a violation” of Section 99. The cover memo for the May 2015 recirculation “remind[s] all officers that civilians have a First Amendment right to publicly and openly record officers while in the course of their duties.”

[…]

But Glik did not clearly restrict itself to open recording. Rather, it held that the First Amendment provides a “right to film government officials or matters of public interest in public space.”

The court says siding with the government’s interpretation would just result in more bogus arrests under the state’s wiretap law.

But the training materials go beyond telling officers when it is impermissible to arrest; taking a narrow construction of Glik, they also communicate that it is permissible to arrest for secretly audiorecording the police under all circumstances. In other words, it gives the green light to arrests that, as the Court holds below, are barred by Glik.

This ruling should put an end to that. You’d think the last ruling would have done the job, but despite the Appeals Court never ruling that secret recordings of public officials were illegal, the state decided to interpret the decision this way, leading directly to the lawsuits requiring the record to be set one more time, seven years down the road.

Filed Under: 1st circuit, first amendment, first circuit, free speech, massachusetts, police, politicians, public accountability, recording

Illinois Prosecutor Brings Felony Eavesdropping Charges Against 13-Year-Old Who Recorded His Conversation With School Administrators

from the no-crime-too-small dept

One of Illinois’ most-abused laws continues to be abused. For years, cops used the state’s eavesdropping laws to arrest citizens who attempted to record them. This practice finally stopped when three consecutive courts — including a federal appeals court — ruled the law was unconstitutional when applied to target citizens recording public servants.

This may have led to the end of bullshit arrests from cops who didn’t like being observed while they worked, but it’s still being used by government officials to punish people they don’t like. Illinois Policy reports a 13-year-old student is facing felony charges for recording a meeting between him and two school administrators.

On Feb. 16, 2018, [Paul] Boron was called to the principal’s office at Manteno Middle School after failing to attend a number of detentions. Before meeting Principal David Conrad and Assistant Principal Nathan Short, he began recording audio on his cellphone.

Boron said he argued with Conrad and Short for approximately 10 minutes in the reception area of the school secretary’s office, with the door open to the hallway. When Boron told Conrad and Short he was recording, Conrad allegedly told Boron he was committing a felony and promptly ended the conversation.

Principal Conrad sure knows his local statutes. He turned Boron in to law enforcement, which apparently decided to go ahead and process the paperwork, rather than tell Conrad to stop acting like a child. This led to prosecutors being just as unwilling to be the adults in the room.

In his petition to bring the charge, Kankakee County Assistant State’s Attorney Mark Laws wrote that Boron on Feb. 16 “used a cellphone to surreptitiously record a private conversation between the minor and school officials without consent of all parties.”

The law forbids recordings without all parties’ consent. It would seem that the school officials’ refusal to discuss anything further once they were informed they were being recorded should have been enough. The conversation was ended, along with the recording. If they were concerned they said something they shouldn’t have during the previous ten minutes, maybe should have restrained themselves during the argument, rather than ruin a 13-year-old’s life with a bad law Illinois legislators refuse to rewrite. Given how often this law is used to protect the powerful, it’s hardly surprising legislators haven’t expressed a serious interest in fixing it.

As it stands now, the law relies on a “reasonable expectation of privacy” to determine whether recordings without the consent of all parties are illegal. A conversation in a school’s reception area hardly seems to be the place where privacy would be expected. Unfortunately, the law doesn’t actually say recordings in ostensibly public areas are legal. This was the legislature’s response to multiple court rulings declaring the old law unconstitutional. This may have made most recordings of police officers legal, but it still makes lots of recordings of public officials — like school administrators — a felony.

For a 13-year-old, this is a huge problem. This places his recording of his conversation with school officials on the same level as aggravated assault and stalking. It comes with a minimum prison sentence of one year. The reaction by school officials is petty and vindictive and only draws more attention to the recording at issue. If these officials are willing to subject a student to a felony prosecution to keep the conversation from being made public, what sort of things were said by the supposed adults in the room?

Anyone further down the line — from local law enforcement to the county prosecutor — could have put a stop to this chain of events but they all chose not to. The cops may feel they had no choice but to follow up, but the “prosecutorial discretion” lauded most frequently by those who rarely exercise it (prosecutors) is, once again, nowhere to be found.

Filed Under: 13-year old, david conrad, eavesdropping, illinois, manteno middle school, nathan short, paul boron, recording

Activist Appeals Court Decision Stating Public Has No First Amendment Right To Record In Public Areas

from the in-which-a-police-station-lobby-becomes-a-jury-trial dept

Contained in a long list of rights violations allegedly perpetrated on activist Matt Akins is a very interesting First Amendment claim. It’s not that Akins’ claim is particularly interesting. It’s that the court’s decision on that issue seems completely wrong.

Akins is no stranger to arrests and interactions with law enforcement.

Akins runs the Facebook page Citizens for Justice, which publishes videos of police on duty and often criticizes and scrutinizes police practices. He used to publish on a website.

Among Akins’ encounters with police in which he alleges his rights were violated is a driving while intoxicated checkpoint that led to a felony gun charge. At the checkpoint, Hughes ordered him out of the car and found a handgun in Akins’ waistband. Though it was legal for Akins to conceal the gun in his car, he had no concealed carry permit, and Hughes arrested him. The suit has alleged that Hughes created the crime by making Akins get out of the car. But the officers have argued at the district court level that Akins could have told Hughes about the gun before exiting the vehicle.

There also was a June 2010 traffic stop in which Schlude pulled Akins and two other men over and searched the car without consent, according to the brief. Akins had a rifle in the car he legally owned, and when Schlude put it back in the car, he told Akins “that having a 10/22 rifle in his car could result in his summary execution by an officer that felt concerned for his safety by a firearm being in the vehicle and that a jury would acquit the officer of his homicide due to officer safety concerns,” according to the brief.

His 80-page petition [PDF] to the Eighth Circuit Court of Appeals hopes to overturn summary judgment in favor of the defendants, who all saw Akins’ claims dismissed under qualified immunity. But his First Amendment claims were also dismissed by Judge Nanette Laughrey, using some very dubious precedent.

Akins also argues that he was retaliated against when he was stopped from filming a citizen in the Police Department lobby in 2011; his links to the Citizens for Justice page were removed from the Police Department’s Facebook page in the summer of 2011; and he was excluded from a Police Department Media Training Day in October 2015. None of the individual Defendants participated in these incidents, and as discussed above, the City cannot be liable under § 1983 on a respondeat superior theory. Moreover, Akins points to no unconstitutional municipal policy or custom. Further, he has no constitutional right to videotape any public proceedings he wishes to. See Rice v. Kempker, 374 F.3d 675, 678 (8 Cir. 2004) (“**[N]either the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public.**“), and Wis. Interscholastic Ath. Ass’n v. Gannett Co., 658 F.3d 614, 627-628 (7 Cir. 2011)

Two of the three claims have little legal merit. The Police Department is free to remove links from its official Facebook page without crossing the line into censorship and there’s nothing in the First Amendment that forces the PD to open up its “media training day” to every member of the public. The second citation deals with Gannett News Service protesting a Wisconsin school’s decision to provide coverage exclusivity to one of Gannett’s competitors. As the court noted then, there’s nothing in the First Amendment that prevents public institutions from entering into exclusive broadcast contracts.

Other courts considering exclusive broadcast agreements between a government entity and a private party have universally, as far as we can tell, reached the same conclusion. Gannett, at least, has shown us no case where an exclusive broadcast agreement has been invalidated on First Amendment grounds.

This handles the “Media Training Day” part of the complaint. But the last of three First Amendment claims — that Akins was told to stop filming in the Police Department’s lobby — is handled much more questionably. The court cites Rice v. Kemper, asserting that there is no First Amendment right to record government proceedings in public areas. The precedent cited is apples-to-oranges, comparing an open lobby where the public is free to come and go with few restrictions to a death penalty execution, where the public’s access to a “government proceeding” is considerably more limited.

Because we hold that neither the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public, we find it unnecessary to decide whether executions must be open to the public. While Richmond mandates that criminal trials be open to the public, no court has ruled that videotaping or cameras are required to satisfy this right of access. Instead, courts have universally found that restrictions on videotaping and cameras do not implicate the First Amendment guarantee of public access.

[…]

Based on the overwhelming weight of existing authority, as well as on our general understanding of First Amendment principles, we hold that the Media Policy banning the use of video cameras and other cameras in the execution chamber does not burden any of New Life’s First Amendment rights.

As Akins’ filing points out, Judge Laughrey’s reliance on a case involving the more limited First Amendment rights afforded to those attending criminal proceedings is misplaced. An open lobby of a police department is simply not comparable to a jury trial or an execution.

In Akins the CPD Lobby was open 24 hours a day, was the designated point where citizens were the file a misconduct complaint/petition the government for a redress of grievances. Contained a “Media Advisory” book on 24 hour arrest reports and information displays and handouts for the public. In addition, it contained a memorial to fallen Officer Molly Bowden. Memorials are designated points where people gather to remember and pay tribute to a particular person or event. Akins assisting Marlon Jordan by documenting his filing of a police misconduct complaint is consistent with the protections of the 1st Amendment. The order of the CPD employee acting pursuant to Chief Burton’s policy that the CPD Lobby was not a traditional public forum and filming not permitted is insufficient to change the nature of this traditional public forum into something else and violated Akins 1st Amendment Rights in the end of the summer 2011.

Citing the First Circuit’s Glik decision, Akins points out that the filming of public officials in public areas is protected by the First Amendment.

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.

Filming another citizen filing a complaint may encroach on that person’s privacy, but no more so than standing within hearing distance would. If the police were concerned about the complainant’s privacy, officers always had the option to handle this interaction somewhere other than the lobby, rather than tell Akins to stop recording. The lobby of a police station is one of the only areas of the building truly open to the public and what happens within that area should be treated no differently than anything happening outside the door on the sidewalk. Applying a decision that invokes the more limited access afforded to attendees of criminal proceedings does no favors to the First Amendment and encourages public officials to deter citizens from recording in public areas.

If the Eighth Circuit Court does agree to review this case, it will be digging into a large number of potential rights violations. Whether or not it will find time to reaffirm citizens’ right to record public officials in public places remains to be seen. It seems unlikely that the Appeals Court will overturn any immunity granted to the defendants, but it hopefully may take a second look at what appears to be an erroneous — and potentially-damaging — First Amendment conclusion.

Filed Under: 8th circuit, first amendment, free speech, matt akins, polic, public areas, recording

Court Says Recording Of Public Interaction Involving Police Officer Not A 'Confidential Personnel Record'

from the screw-the-people-that-pay-our-salaries dept

The city of Eureka, California loves its cops but hates it citizens. How else can you explain its two-year legal battle to keep police camera footage out of the public’s reach?

The North Coast Journal has been fighting with the city for the release of dash cam footage of an arrest of a 14-year-old that led to criminal excessive force charges. The city had argued that no footage was accessible via public records requests, an idea the appellate court found ridiculous.

So, for two years, it fought against transparency and accountability, funding its fight with taxpayers’ money while working in opposition of their interests. Now, taxpayers are on the hook for the paper’s legal fees as well. The backstory is this:

After criminal charges were dismissed, the Journal submitted a California Public Records Act request in August of 2014 asking for a copy of the video — a request the city denied, citing the discretionary exemptions for police investigative files and personnel records. In November of 2014, the Journal filed a petition in juvenile court under Welfare and Institutions Code 827, which carves out a process for members of the public to access juvenile court records, which are generally considered confidential.

In May of the following year, after reviewing the arrest video, [Superior Court Judge Christopher] Wilson granted the Journal’s request, finding the public interest in seeing the footage outweighed any privacy concerns and ordered the video released. The city then appealed, arguing that Wilson erred in his interpretation of the law and was allowing the Journal to circumvent state laws severely limiting access to confidential police officer personnel records — a series of statutes known collectively as Pitchess.

[Attorney Paul] Boylan countered that the video simply wasn’t the kind of record that would be protected by Pitchess, as it captured public employees carrying out their publicly entrusted duties on a public street and was not something generated by an internal affairs investigation or a disciplinary proceeding.

That was the city’s argument: that any footage captured by police cameras could be withheld under these public records law exemptions. It actually claimed that dash cam footage was a “confidential personnel record.” The court pointed out that all a camera does is capture footage of incidents and interactions. Even if used in disciplinary proceedings, the footage is not, in and of itself, a disciplinary record.

And yet the city continued to fight. It petitioned the state Supreme Court to depublish the lower court’s decision so it couldn’t be considered precedential. It wanted a standalone opinion that pertained to a single requested recording, not something that could be used to force it hand over more footage more often.

Maybe it’s not fair to say Eureka hates its residents. Maybe it just thinks its law enforcement officers are more deserving of its effort and spent funds. But nothing about its fight suggests it’s at all interested in either a better police force or a better relationship with the people paying for its opacity efforts. Government entities already have a plethora of exemptions available to keep info out of the hands of the public.

Claiming video of a public encounter involving a public servant is somehow a “confidential record” is completely asinine. Fortunately, the state Supreme Court has refused its petition, which will save taxpayers the expense of funding yet another attack on their own transparency interests.

Filed Under: california, confidential, eureka, foia, police, public records, recording

US Marshal Shuts Down Citizen Recording By Grabbing Phone And Smashing It On The Ground

from the warranty-hopefully-covers-'acts-of-[someone-who-thinks-he's]-God' dept

So… this US Marshal seems to have a ton of unresolved issues to work through. (h/t to Techdirt reader william)

Where to start… First off, this guy doesn’t look like he’s patrolling an LA suburb. He’s dressed for a war zone.

There’s a message being sent by this “tactical gear” and it says that these Marshals think they’re a military detachment and everyone around them not clearly labeled as law enforcement is the “enemy” — including anyone with a camera.

Now, it’s pretty well established that citizens have the right to film law enforcement officers while in public places. There are exceptions, of course, but none of those appear to be in play here.

What does appear to be in play is the mental exception far too many law enforcement officers feel they can deploy whenever they’d rather not be “watched.” According to an interview with Beatriz Paez, whose filming was “interrupted” by the US Marshal (and fortunately filmed by yet another person from across the street), the officers first turned their backs to her (which is fine) and then proceeded to keep moving towards her to block off her view.

When this more subtle intimidation failed to deter Paez, the US Marshal simply stormed up to her, grabbed her phone, smashed it to the ground and finally, kicked the shattered device back to her.

I guess she can be thankful he didn’t demand she hand over the phone as evidence. Although, if he had deployed that BS tactic, he’d just look stupid rather than abusive and potentially dangerous — a person armed to the teeth who can’t control his impulses.

As is par for the course when law enforcement officials can no longer ignore the bad behavior of one of their officers, thanks to a citizen’s recording, there’s now an “investigation” underway.

“The U.S. Marshals Service is aware of video footage of an incident that took place Sunday in Los Angeles County involving a Deputy U.S. Marshal. The agency is currently reviewing the incident,” officials said in a statement.

I would hope that review has been concluded already. The video is only 58 seconds long and the marshal’s actions are clearly visible. One would think the review would be about 60-65 seconds long and conclude with a supervisor’s disgusted, “Seriously, dude. WTF.” This should be followed by an appropriate punishment, like perhaps some sort of anger management courses and long relocation to the basement office, but will more likely conclude with a stern talking-to and a short paid vacation.

And make of this what you will:

Paez said she began recording when she saw the law enforcement presence, their military-style weapons and a line of people being detained. She said the officers started letting the people they detained go soon after she pulled out her phone and started recording.

Hmm. It would appear the officers were uncomfortable with possibly questionable actions being recorded for posterity. We don’t know exactly what was going on, and it could just be a coincidence, but the attempts to intimidate Paez into putting down her phone (which concluded with a US Marshal’s smash-and-grab grab-and-smash) suggest something not quite by-the-book was underway when she first began documenting the scene. We’ll know more if Paez’s footage can be recovered from her destroyed phone.

Filed Under: la, lapd, los angeles, militarized police, phone, police, recording, us marshals

Record A Teacher Bullying A Student? That's A Suspension

from the arbitrary-privacy-expectations dept

Is a public school classroom a private space? That seems to be the assertion of school administrators after an 11-year-old student recorded a teacher bullying a student.

A St. Lucie County teacher has been fired after a student used her cellphone to record a teacher bullying another student.

The Samuel Gaines Academy student, 11-year-old- Brianna Cooper, is being praised by her peers. But, she’s still facing punishment from school leaders for recording the audio illegally.

WPTV legal expert Michelle Suskauer says it is illegal in Florida to record anyone without them knowing.

Florida’s two-party consent/wiretapping law is outdated and likely unconstitutional, but for now it stands. It also provides an exception for recording oral communications where the person speaking would not have a reasonable expectation of privacy.

A classroom, in a public school, would seem to be a place where no one would have an expectation of privacy. Administrators certainly go to lengths to assure their students that nothing they do while at the school is afforded any sort of expectation of privacy, what with random locker/vehicle/cell phone searches and monitoring of computer use. So, why would a teacher be granted an expectation of privacy for something said in a classroom?

Well, it’s not so much Florida’s law implicated here as much as it is the district’s policy on personal devices, even though the school allegedly referred to the recording as “illegal.” According to the policy, “wireless communication devices” may not be used to record anything on school grounds.

Inappropriate use includes, but is not limited to: (1) activation, display, manipulation, or inappropriate storage during prohibited times; (2) texting, phoning, or web browsing during prohibited times; (3) taping conversations, music, or other audio at any time; (4) photography or videography of any kind; and (5) any activity that could in any manner infringe upon the rights of other individuals, including but not limited to students, teachers, and staff members.

Now, using this policy to suspend a student who exposed teacher misconduct is just pure tone-deafness, which explains the district’s decision to quickly reverse the suspension. Not only that, but this “violation” doesn’t even carry with it the penalty of suspension.

Any disruptive, harassing, or other inappropriate use of a wireless communications device while under the School Board’s jurisdiction, shall be cause for disciplinary action under this heading, including confiscation of the device as contraband and, in the event of repeated or serious misuse, loss of the privilege to possess such a device on school property or while attending a school function.

So, the suspension makes even less sense than it would otherwise, given the school’s actual policy on cell phone use — something it seems to have (briefly) ignored in favor of deterring a student from exposing staff misconduct.

But there’s still a link to Florida’s outdated wiretapping law contained in the school policies. This sentence wraps up the paragraph on inappropriate use of cell phones.

The use of a wireless communications device shall be cause for disciplinary action and/or criminal penalties if the device is used in a criminal act.

At which point, we’re back to the question of privacy expectations. Certainly, most schools are quick to cite privacy laws when dealing with the release of student information. Anything to do with minors is inherently more sensitive than that of adults. Not that privacy concerns prevent schools from being as invasive as possible when dealing with their students, requiring signatures on policies that allow administrators to search students’ devices, lockers and vehicles for nearly any reason, as well as the offering of waivers to use photos and student information in news stories and school-produced materials.

But this school also forbids the recording of anything while on campus, even with a personal cell phone, granting an expectation of privacy that doesn’t actually exist under Florida law. Public schools are public and words uttered by educators and administrators in classrooms and assemblies (any place where it’s not “one-on-one”) are very much “public” by definition. Florida’s wiretapping law shouldn’t apply. Unfortunately, school policies take precedent in situations like these, and this district has pretty much assured that the bullying that schools seem so concerned about will only be handled with hearsay, as any recording evidence to back up allegations is forbidden.

Kudos to the school for quickly realizing suspending the student was the wrong way to handle this, but the policies it forces students to follow are just going to make it harder for administrators to deal with misbehaving students and teachers.

Filed Under: florida, recording, schools, teachers, two party consent, wiretapping