When Myths Meet Tech

A standard story:

In the bad old days, police gave lip service to law, but actually often looked the other way, issued street justice, planted evidence, or lied under oath, all to implement their own sense of who should be punished, to gain payola, or to bow to the necessities of political influence. While this situation continues in much of the world, in our great nation, ta da, heroic legal activists appealed to our better natures, and shamed us into constraining the police, judges, etc. to actually follow the legal principles to which they give lip service. Sure sometimes we find a few bad apples, but now we mostly do just apply the law neutrally.

This heroic myth is now colliding with rapidly falling costs of recording our interactions with police, and with each other. When such clear evidence is usually available, we will have to either actually follow our legal principles, or be obvious about not doing so. Surely we wouldn’t just make it illegal to record interactions with police, right?

In far idealistic mode, many are tempted to accept this standard story, and assume that any laws against recording one’s interactions with police must be a temporary error, surely to be overturned when the good voters become aware of the outrage. We’d never so transparently turn our backs on our core legal principles, right?  Consider:

In at least three states, it is now illegal to record any on-duty police officer. Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.

The legal justification for arresting the “shooter” rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where “no expectation of privacy exists” (Illinois does not) but in practice this exception is not being recognized. …

A few weeks ago, an Illinois judge rejected a motion to dismiss an eavesdropping charge against Christopher Drew, who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. … In 2001, when Michael Hyde was arrested for criminally violating the state’s electronic surveillance law – aka recording a police encounter – the Massachusetts Supreme Judicial Court upheld his conviction 4-2. ..

The selection of “shooters” targeted for prosecution do, indeed, suggest a pattern of either reprisal or an attempt to intimidate. … Recordings that are flattering to the police – an officer kissing a baby or rescuing a dog – will almost certainly not result in prosecution even if they are done without all-party consent. …

A recent arrest in Maryland is both typical and disturbing. On March 5, 24-year-old Anthony John Graber III’s motorcycle was pulled over for speeding. He is currently facing criminal charges for a video he recorded on his helmet-mounted camera during the traffic stop. …

Cameras have become the most effective weapon that ordinary people have to protect against and to expose police abuse. And the police want it to stop. Happily, even as the practice of arresting “shooters” expands, there are signs of effective backlash. At least one Pennsylvania jurisdiction has reaffirmed the right to video in public places. As part of a settlement with ACLU attorneys who represented an arrested “shooter,” the police in Spring City and East Vincent Township adopted a written policy allowing the recording of on-duty policemen.

And this is all about the official rules. I’m pretty sure that unofficially, police have ways of punishing you for trying to record them, even if you are legally allowed to do so. Consider also:

An obvious enabler of police corruption is the fact that internal affairs units, tasked with exposing corruption, usually report to the same police chief that would be embarrassed by such exposure, and who may also be corrupt. An obvious solution is to make internal affairs more independent, e.g., reporting directly to a city council or even a governor.

This isn’t some temporary lack of adaptation to a new tech; the obvious solution has been possible, and ignored, for a long long time.  Now ask yourself honestly, in near mode, what you think will usually happen in ten years to someone who tries to visibly record their interaction with police.

Added 16June: New from the Post:

The decades-old wiretap law has suddenly become a fresh battleground for civil libertarians and bloggers who consider Graber’s prosecution and a series of similar arrests a case of government overreach.

Count me as one of those bloggers. 🙂

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  • Also, bystanders tend to ascribe “they deserved it” traits and behavior to people who are unofficially punished or selectively enforced against by cops. I used to think posters making such unfounded excuses were trolling, but now believe it’s genuine bias – preferring to believe that the world is fair (and so are the authorities we endorse and are subject to).

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  • Eamonn Vincent

    And of course the police may be recording you recording them…


  • anon

    In far idealistic mode, many are tempted to accept this standard story, and assume that any laws against recording one’s interactions with police must be a temporary error, surely to be overturned when the good voters become aware of the outrage.

    I am confused here. If the idealistic story is that police actually uphold legal principles correctly, then this should weigh against letting random people record cops on camera, because monitoring cops becomes less important and their privacy matters more.

    For instance, one rationale for the ban is that police cars also have dashboard-mounted cameras, and these videos will constitute more reliable evidence and be less likely to create privacy problems. Unfortunately, inconvenient footage tends to mysteriously “disappear” or not get recorded at all–but in idealistic far mode this is not a salient problem.

    • PA

      I’m sorry, but idealistically, there is no crime, and hence no need for police officers.

      Therefore there is no idealistic argument for not taping the police, as, they themselves are admitting by their very existence that the world is non-ideal.

  • rapscallion

    Yeah, but making recording cops per se illegal seems like such an outrageously corrupt policy that I tend to think that even the normally pro-police public won’t let it slide. Rather, some fairly-ridiculous-but-better-than-an-outright-ban policy that will be framed as a compromise will become the norm. For instance, if it’s not you who is being arrested, you may be required to give your name to the officers and stand at least 50 feet away. If it is you who is being arrested, officers might be required to mention in the reports that you requested the ability to film but were denied. These irksome restrictions can be justified to naive people on the grounds of protecting officer safety (if you post videos on youtube, people might seek retribution on the cops!!!) or as additional ways to collect evidence (we might need that tape in court!).

    BTW, it’d sure be great if governors or Obama would come out against recording restrictions before they become the norm.

  • Indy

    Question: Why do the 12 states have non-recording laws? What interest does it protect? It’s not exactly “privacy”.

    If one has an agreement that (or a reasonable expectation) a conversation will be kept confidential, then the listener communicating to any other party the content of the conversation could be justified as creating a cause of action.

    But without that agreement or expectation – the listener can still blab all they want and post a transcript-from-memory on their facebook page and not violate any statute. If the listener is credible and trustworthy – the mere fact that it is second-hand won’t prevent third parties from believing that the related content is accurate.

    So “privacy” isn’t protected. “Deni-ability” isn’t protected (at least, not officially), we aren’t preventing recording in order to condone or enable lying or falsely disavowing the fact that one made embarrassing statements (which were not somehow privileged).

    What is legally protected then is the *inadmissible-as-hearsay character of legally-collectible evidence concerning the content of the conversation*.

    So, notice also with the police-recording statutes. One is not barred from watching or observing the conduct of police. There is no “preservation of privacy” argument for what occurs in public view. One is not barred from testifying as to the actions and conduct which one witnessed.

    But one cannot testify to what was said. A right to record would change that.

    But the purpose of the inadmissibility-of-hearsay rules of evidence is the typically inherent untrustworthiness of second-hand stories about statements the content of conversations. Recordings eliminate that rationale.

    So are we left with the enabling of false denial as the only plausible rationale for non-recording laws?

  • Steven Schreiber

    Is this story really colliding with recording technology? What percentage of police interactions with the public actually involve such breaches?

    My prediction for ten years out: jurisdictions where the police are both powerful and largely independent will have recording restrictions while jurisdictions where the police are relatively weak will not. I would think this is true now and holds across occupations. I’m thinking California prison guards and being tough on crime.

  • Bock

    Aren’t the concepts of near and far just reformulations of the Freudian concepts of id and superego?

    • michael vassar

      Partly, but construal level theory explores the empirical cluster of concepts and percepts which push a person’s thoughts towards temporary dominance by one or by the other. Old theories are rarely wrong, just very incomplete. This is a way of adding detail to an old theory, making it easier to test and possibly to understand.

      • Bock

        ok. thanks.

        “temporary dominance”

        Nietzsche called this the social struggle of the spirits, or something like that.

  • My prediction for 10 years out: interactions with the police will be recorded routinely. Recordings will be available to anybody involved in the incident. Possibly they will be public records, possibly public records if released by the non-police involved.
    Sure the pigs will resist these inroads into their organized-crime-except-legal affairs. They have resisted previous inroads, but have lost. I have thought the last few years that the pigs are getting so in the face of the not-really-criminal middle class, that they were do for some major brush back. I think these cases where they are succeeding at prosecuting their victims will be a short-lived exception to the trend.

  • That’s not the “standard story” except among clueless legal activists and fellow travelers. The average voter for whom such policies are crafted has this standard story: The police are there to protect us from the bad guys, and if they need to be cut a legal slack, so be it; who cares if it’s on the wrong side of a legal technicality?

    So there’s no hypocrisy here at all. Voters are getting what they want. Why do they tolerate these policies? Because they aren’t speed demons who ride motorbikes, bums who sell one-dollar “artwork” on the Chicago streets, etc. They figure they will rarely or never need to film a cop interacting with them, while the bad guys would love to film the cop and trip them up on some technicality that would get them acquitted during trial. So the average voter is willing to look the other way on this.

    The average voter might have need to ask a cop for his name or badge number, so I’d expect those actions to be far less likely to be outlawed (de jure or de facto). Law-abiding people don’t see those as a way for bad guys to get off on a technicality, and as something they themselves would rarely need to make use of.

    • Firaga

      The average voter…

      Average people, the best argument for authoritarianism.

  • josh

    Yes. I was in southeast DC the other night. Looking around I thought, “Boy, I feel unsafe. Something really needs to be done to weaken the police force.”

  • “Now ask yourself honestly, in near mode, what you think will usually happen in ten years to someone who tries to visibly record their interaction with police”

    Police: Hey put that away
    Shooter: No way man
    Police: Thats illegal
    Shooter: Screw you that XXX you did was fucked up
    Police: Look I am only gonna tell you once more [Places hand on recording device]
    Shooter: Get the fuck off me
    Police: [Uses Taser or current non lethal force device]

  • Edward

    With respect, this has almost nothing to do with “far” and “near”. What it signals is that Robin Hanson has found a hammer in this easy and almost moralistic conceptual division.

  • jb

    The different vectors for this problem:

    1) Technology – cameras will become even smaller and less obtrusive
    2) Common Sense – there’s no good reason to prevent this
    3) Insurance – I could record it, and decide to release the recording if and only if the charge against me was significant (worse than breaking the wiretapping law)
    4) Supreme Court – I suspect that one a person from State X is pulled over by a police officer from State Y, that we’ll see this bubble up to the Supreme Court, who I suspect will be unsympathetic to this wiretapping argument
    5) Networking – perpetual instant recording to the internet renders some of these laws antiquated

    In other words, in 10 years, even when I think about things in near mode (or at least I think I do), I suspect that some small subset of people will surreptitiously record the police, and release the tapes when they misbehave.

  • It’s easy to understand why, on a gut level, police would not want to be filmed while on duty. It’s the same reason why people of certain age or racial groups are sensitive about being followed around a store by the store’s employees. There’s an implication that the person being filmed is presumed to be doing something wrong.

    And beyond that, there’s the possibility that a recording could be selectively edited and disseminated on the Internet, creating widespread (and potentially unjustified) outrage.

    I do think recording the public actions of police officers should be legal. Cops should be trained to not regard video cameras as threatening, and indeed to expect that any interaction with the public might be filmed by a member of the public. But perhaps a compromise could be reached wherein only unedited footage would be legal to disseminate? (Or, if you disseminate an edited version, the unedited version must be available as well.)

  • I just added to this post.

  • So why no large-scale civil disobedience to overturn such laws. Millions of people going to police stations everywhere filming any move…?

  • Scott Greenfield (a defense lawyer) argues that we stretch the rules of evidence for unsympathetic defendants we’ve decided seem guilty.

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