Privacy Blog Post: Panel 4. By Clay Venetis
Gilford, New Hampshire Proposes Rules for Police Body Cameras, Including an Exemption to State Wiretapping Laws.
The use of body cameras on police officers is a popular suggestion today for curbing misconduct. Local law enforcement departments like that in Gilford, New Hampshire are currently drawing up rules requiring officers to wear them. Yet such civil liberties-minded requirements may come in conflict with another central civil liberty – public privacy. Federal and state wiretapping laws generally prohibit recording interactions with individuals without consent – and a body camera would record many such interactions throughout the workday. Hence, the proposed rules in Gilford “exempts the use of body cameras from wiretapping laws” to avoid this conflict of laws.
Do we want body camera requirements at the expense of better protection of our communications with the police? How do we balance the interest of police accountability with the privacy of the individuals that officers confront?
It is important to note that at the federal level, there is no likely conflict. The Wiretap Act 18 U.S.C. §§ 2510-2522, which makes intercepting wire, oral or electronic communications unlawful, allows interception when one party consents. § 2511(2)(c). Thus, the police consenting to record their interactions with the public would suffice to shield them from federal wiretapping violations.
Yet states have their own wiretapping laws. While many also provide an exception to the law when one party consents, twelve states do not have that exception (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington). That is, twelve states require all parties to consent to the recording. This is why we mentioned above that the police department of Gilford, New Hampshire, needs to exempt body cameras from their wiretapping laws. The people on the street are parties to the interaction, and they will not always consent to the recording.
This conflict has already played out in the opposite scenario: when citizens secretly record police officers. Individuals in Massachusetts have been charged with violating state electronic surveillance laws after bringing forward hidden audio recordings of their interactions with police. See, e.g., Commonwealth v. Hyde, 750 N.E.2d 963 (Mass. 2001). If members of the public are liable for recording police officers while being arrested, the officers could very well be in violation when recording the individuals they are arresting.
Some states that require all parties to consent to the recording do have exceptions for public interactions, in which no party has a reasonable expectation of privacy in their conversations. For example, California’s wiretapping law does not protect “a communication made in a public gathering … or in any other circumstances in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” Cal. Penal Code § 632(c). Therefore, in such jurisdictions, recording a police officer without interfering is likely lawful.
However, with respect to body cameras, much of the police officer interactions that implicate privacy concerns occur in non-public areas, such as the home, where the public will have a reasonable expectation of privacy. In these instances, the body camera requirements are more likely to conflict with wiretapping restrictions. Assuming an officer is in one’s home lawfully, is it also lawful for the officer to be keeping a detailed audio-visual record of everything inside the home, which can then be filed and referenced in the future? This also points to Constitutional concerns, such as the reasonableness of a search under the Fourth Amendment.
Therefore, in some states, a body camera requirement will have to include a wiretapping exemption, like that in Gilford’s proposed rule. In the body camera debate, we should ask ourselves whether we are comfortable with laws that may negatively implicate privacy interests in exchange for better police accountability. Not all civil liberties are compatible.
Other Sources:
Laws on Recording Conversations in all 50 States:
https://www.mwl-law.com/wp-content/uploads/2013/03/LAWS-ON-RECORDING-CONVERSATIONS-CHART.pdf