Kodak Moments With Police: Let the Videographer Beware

Filed under: Criminal Law, News by Contributor @ September 1, 2015

Most will remember the popular, now infamous, news story from a few years back when a young woman was punched in the face by a police lieutenant at the Philadelphia Puerto Rican Day Parade. That incident was captured on video and audio by a local bystander and quickly went viral.  The past few years have seen a flood of similar recordings due to the rise in cell-phone cameras.  Video recordings have been made of dozens and dozens of Youtube-worthy police encounters, running the gamut from near comedy to absolute tragedy.  While a picture may speak a thousand words, these images portrayed in the media do not always tell the whole story.  Still, the question remains about the legality of taping a police encounter.

The Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S § 5703, prohibits the intentional interception of any wire, electronic, or oral communication.  In fact, it is a Third-Degree Felony to do so. This applies to the audio portion of a recording – it is not a wiretap violation to use technology that only records video without audio. Further, the prohibition only applies in situations where the other party has an expectation of privacy in their words or actions. Civil assessments, including punitive damages and litigation and attorney fees may also be available to a victim of an illegal surreptitious audio recording.  Of course, audio recordings are permissible where there is valid consent by all parties.

A common violation of the wiretap act occurs when one party records audio of another without that person’s knowledge. Attorneys should be careful taking possession of illegal recordings, let alone making the recordings themselves.  Although historically these violations were almost never prosecuted, one month ago the Pennsylvania Attorney General charged two separate attorneys with two separate wiretap violations involving evidence in the cases they were handling.

While the general rule is that you can’t audiotape someone without their knowledge, the Third Circuit has suggested, on First Amendment grounds, that police officers while acting in their official capacity probably do not have a reasonable expectation of privacy that they will not be recorded.  Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir.2010).  Therefore, citizens are likely protected from prosecution or civil action under the wiretap laws for recording audio of police activity in most cases.  That being said, it is not always a wise idea to interfere in a police action.  For better or for worse, however much police may be trained to seek to avoid confrontation with a cameraman, the “paparazzi effect” can have its toll and officers may not always respond kindly to being taped.  That being said, citizens do appear to have a general right to video and audio tape a police encounter they may witness.

Update, February 22, 2016: Consistent with the above paragraph, The Honorable Mark Kearney has just held, in the Eastern District of Pennsylvania, that citizens do not have a First Amendment right to film police when there is no apparent wrongdoing. In this case two observers who were filming police without being aware of any specific misconduct had their phones seized by police (they should have heeded our warning above). They then sued the police for violating their First Amendment rights and the Court determined that they had no such rights under the facts of this case.

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