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Saturday, 24 December 2016

Your right to record the police is at risk

Privacy SOS


In 2011, the First Circuit Court of Appeals ruled that we have the right to record the police in the public performance of their duties. But what does the right to record the police mean if you cannot exercise it? Not much.

Our society entrusts the police with unusual and extreme powers: the ability to use violence and to deprive us of our liberty primary among them. Recording the police is a tool we can use to make sure officers don’t abuse those powers, and with which to hold them accountable if and when they do. Five years ago, the First Circuit held that this right is protected by the First Amendment. Chilling videos depicting police killing people across the country, released over the past few years with alarming frequency, underscore the importance of securing this right.

Here in Massachusetts, our right to record is at risk.

Under the statute, known as Section 99, someone convicted of secretly recording another person faces up to five years in prison. The law also makes it a crime to “permit[],” “participate[] in a conspiracy to commit,” or be “an accessory to a person who commits” a secret recording. Despite the fact that recording the police performing their duties in public is protected First Amendment activity, however, the statute contains no exception for this behavior.

In 2011, the First Circuit ruled in Glik that recording the police in the public performance of their duties is First Amendment protected activity. The court’s ruling did not distinguish between overt and secret recordings. But some people fear recording the police openly—in other words, they cannot exercise their right to record unless they do so secretly. The fear of arrest and prosecution under Section 99 prevents individuals from secretly exercising their constitutional right to record the police.

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