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Resisting Restrictions on the Right to Record

I worry about well-intentioned yet poorly considered laws ultimately restricting our right to record, remember, and share our memories.


Some years ago, not too long after 9/11, I stood before what could be mistaken for a fairy-tale glass castle, a building known as PPG Place in Pittsburgh. I was attempting to photograph it. A rather angry guard approached and challenged me; however, before he could do or say much, two local police officers came to my aid and politely but firmly explained to the guard that the only problem they saw was his harassment of a photographer.

Amid the current debate about police body cameras and the taping of police by citizen videographers, I recall that incident with both gratitude and growing concern.

Following public outcry over shocking footage of several police shootings, we hear increased calls for more police-worn body cameras as a means of increasing officer accountability. At the same time, in the past few weeks there have been several accusations of police officers attempting to prevent members of the public from photographing them — including an instance in which an officer appears to have approached a bystander and then simply grabbed and smashed her cellphone.

But the incidents that raised the public outcry were brought to light not by police-worn body cameras, but by recordings made by members of the public. While recording technology alone is no guarantee of justice, a knee-jerk rush to equip police with video cameras is a half-measure at best. Clear and consistent procedures regarding body camera use are not yet established, making them as much a threat to individual privacy as they are a protection for officers and the public.

And even legislation to prevent tampering would not dissuade a corrupt police officer from deleting footage, or turning off a body camera altogether, if it meant covering up a more serious crime than breaking procedure. It is the accessibility of recording technology to both the police and public that best aids trust and justice. Such technology — in the hands of all — can be both a bad cop’s worst nightmare and a good cop’s best ally.

And yet, at the same time as the calls for police body cameras grow louder, we are seeing Texas lawmakers trying to introduce legislation that prohibits public recording of police from a distance of less than 25 feet. Had such a law been in place back in Pittsburgh when I was trying to photograph a beautiful building, and had I been videotaping instead, would I have become guilty of a crime as the officers rushed to my aid?

Texas is not unique: This sort of legislation has been proposed before from time to time, and multiple citizens have been forced to take legal action against overzealous law enforcement officers who misunderstood the legality of photography and videography in a public space.

The use of recording devices by the public and in public should be much less controversial than the use of police body cameras, but the argument made in support of laws like the one proposed in Texas is that they would protect police from public interference. The reality, however, is that such laws would harm both the public and the police in ways that legislators have probably not anticipated.

Hindering the police in the conduct of their duties is already illegal — whether or not the hindrance involves a camera. If a videographer’s presence interferes with police action, the police can already instruct him or her to, in the words of the ACLU, “cease activities that are truly interfering with legitimate law enforcement operations.”

Banning all videotaping of police by citizens from a particular distance, however, would only give bad officers a powerful tool to cover improper or illegal actions, while at the same time limiting the availability of evidence that could exonerate and protect good police officers from false allegations.

Beyond the concerns related to police officers, however, such laws would also hinder private citizens’ ability to effectively and thoughtfully integrate the growing use of cameras and data storage technologies into their lives.

This is an issue of growing importance because we, as a society, are adapting to technology. Our behaviors and brains are actively changing in response to technology. Wearable cameras that augment our ability to recall moments and experiences, for example, are no longer the stuff of science fiction.

A quick tally of the electronics I currently carry reveals three different cameras, four different radios potentially transmitting and receiving data, and five different data-storage devices (and lest you think I am highly unusual in my use of technology, you should know that I have only tallied a phone, a watch, and a small travel camera). These devices help me. For some, they are essential life-enhancing tools.

As I and others grow to rely on these devices in our day-to-day interactions, how will laws such as the proposed Texas ban on taping police from a certain distance affect us? Instead of preventing the “hindering” of police, such laws are likely to dissuade people from augmenting their senses and memories with helpful technology. In the process, they would criminalize uses of technology that would otherwise improve quality of life or even alleviate medical conditions.

For example, should police officers arrest a passenger wearing a Google Glass device (say, in a car stopped for a traffic violation) for videotaping them from too close a distance? What if the person wearing that device were an autistic child using it to get prompts regarding the facial expressions of those around her? (Google Glass apps have already been created for that particular purpose.) Would that child be “hindering” the police?

Would such users require a medical waiver to exempt them from a law like the one introduced in Texas? Would people with cognitive or sensory disorders have to do without an assistive device in the presence of law enforcement officers, or forego its benefits in public altogether lest an officer pass by too closely?

Given our increased use of video cameras and related technologies, my concern about such laws extends beyond First Amendment issues; I am even more concerned about the potential criminalization of the basic human right to pursue a happier, healthier, safer and more dignified life through the use of new devices that might trigger the laws’ prohibitions. And even more broadly, I worry about well-intentioned yet poorly considered laws ultimately restricting our right to record, remember and share our memories.

As we argue about the right to be forgotten, or the transparency, accountability, and privacy issues surrounding the use of police body cameras, let’s not forget the more fundamental aspects of public good that would be impacted by laws that attempt to restrict recording by the public in public places. Do we not have a right to preserve our memories, visual or otherwise?

Ahmed Amer, associate professor of computer engineering at Santa Clara University, studies data storage technologies and has also worked on developing low-cost wearable computing and augmented-reality devices. He is an amateur photographer who, a decade later, remains grateful to the two police officers who acted to keep him safe and protect his right to photograph in public. Reach him @aamer.

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