David Pakman: Joining us is Ryan Radia, Associate Director of Technology Studies at the Competitive Enterprise Institute. Ryan, thanks for joining us on short notice. I want to talk about this story from Illinois where there is a man who may potentially serve jail time for recording a police interaction. I know that this is based on an old wiretapping statute; this is an activity that's legal in most states, Illinois choosing to go back to the statute. How unusual is this, first of all?
Ryan Radia: It's fairly unusual, but not as unusual as you'd think. There've been a handful of charges brought against individuals in states like Illinois that have wiretap laws that require both parties to consent before any audio or videotaping can occur.
David: So when you hear about something like this, the obvious question is well, as a general rule, what are people's rights in terms of recording interactions with police, police stops? We see a lot of dash cam video, so we know that in many states, the police are doing some recording. Generally, is there... is there a general safe rule for this in most states? What are people allowed to do when they're in these situations?
Radia: Well, in states where only one party must consent for wiretaps, which is, as you said, the majority of states, I'm not aware of any charges that have been successfully brought against people for recording the cops. But in the states where both parties have to consent, there is a risk that if you do this, if you videotape or audiotape the police, that you will be charged with a crime.
However, there's a very powerful argument to be made that videotaping police engaged in their duties as officers of the state is protected by the First Amendment. It's like newsgathering. Even if you're not necessarily a member of the press, what you're doing could be used in a number of ways to publicize potential government misconduct.
So law professor Eugene Volokh, who's at the University of California Los Angeles, believes that the First Amendment protects the right to videotape police in most instances when they're on duty. Unfortunately, there hasn't been a Supreme Court ruling to that effect, so we don't really know for sure exactly where to draw the line as far as what your risks are if you do videotape the police.
David: You know, a couple of... to just compare this with what goes on with different federal agencies, with the TSA, I specifically looked into this because I opted out of the... I opted for one of these porno pat-downs a couple of times ago when I flew, and I wanted to record it, and basically what I found was as long as you're not interfering with the process of the TSA, you're allowed to record video and audio at TSA checkpoints. A friend of mine who is a federal agent for another agency that routinely conducts stops said you're basically able to record, it is completely legal, except, to be completely honest, we're probably going to give you a harder time if you do that because you're kind of giving us a harder time. So in many cases it seems like the federal laws are more relaxed about this than some of the state police laws.
Radia: A lot of this isn't necessarily what the federal laws are, it's just how various federal agencies, like the courts, like law enforcement agencies, have decided to regulate what sorts of things their officials are going to do. Most police are not going to arrest you if you videotape them. In fact, some states where there have been arrests have actually directed police to stop doing this. They've said that prosecutors have... the attorney generals' offices have said don't arrest people for videotaping you.
Unfortunately, as you point out, there are... first there are a handful of bad apples, some law enforcement officers realize I can arrest someone for doing this, even if they don't get convicted of a crime, I can still make them think twice about doing it, and it's also true, as you said, you're probably going to get a harder time from police if you videotape them, as is often the case when you exercise your rights. That's something that is frustrating to some police officers who see it as an unnecessary obstruction or an annoyance.
David: Well, the other thing, too, is that it strikes me as one of these kind of one... and I know that there are many one-sided aspects to law enforcement, but it really strikes me as... here in Massachusetts, there was a case recently that involved a local judge being arrested, and there was dash cam video, and this is one of those situations where the dash cam video, because it was not favorable to the police, they basically disappeared. The police said we don't have... even though the dash cam on that vehicle, on that police cruiser normally is on, and we believe video was recorded, you know what? We just don't have it.
And it's one of these situations where if you don't allow the individual to record, not that I'm one of these guys that wants to record every interaction with police, you're really giving a one-sided advantage to police. If they don't like what's on the video, they remove it, but nobody else can record anything either.
Radia: That's absolutely right. I think that the dash cams are actually a great thing, because they promote the police and they help protect individuals whose rights might have been violated. If... in the unlikely event that you end up in an encounter with the police and you're charged, and the police lie, which is rare, but it's happened, the ability to go to court and prove on camera that your recollection is correct is important, because in general, judges and juries are more likely to believe the person with the badge than somebody who's being charged with a crime.
David: Especially because many of those police officers are professional witnesses in these situations.
Radia: Right. They're very used to standing up before court and testifying on these things. If you care about government accountability and ensuring that people who we give the power to arrest people and put people behind bars are doing their jobs well, the more videotaping of police that's happening, the better. It's going to result in better law enforcement. It's going to make people trust police more when people can say look, poliece aren't lying, there's video evidence to back up the fact that 99% of the time, what police say happen is actually what happened.
David: Hey, real quick, Ryan, I don't know if you heard about this, but I'll just throw this at you, I was reading about a new Tennessee law that wants to criminalize the sharing of Netflix passwords to anyone other than your spouse or children in the same household. I can understand the foundation for this, which is if you're in a dormroom situation and you give your password to everyone on the floor, that's a lot of lost revenue for Netflix, but is this an example of overcriminalization? Should laws like that not be civil issues rather than criminal?
Radia: They should not be criminal issues, that's correct. When you hand over your Netflix password to someone and they use it, Netflix has the right, I think, to cut off your service and say too many IP addresses are accessing your Netflix account. And if they believe that you've injured them, they should be able to take you to court.
This is not the sort of thing that should rise to the level of a criminal offense, unless we're talking about some sort of a massive defrauding going on, if people are sharing passwords on some website for commercial gain, maybe then you have a criminal issue. But casual sharing of passwords, absolutely not something that should be criminal issued at any level of government.
David: All right, Ryan Radia, Associate Director of Technology Studies at the Competitive Enterprise Institute. Great to see you again. Thanks for joining us.
Radia: Thanks for having me.
David: All right, bye.
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