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Policing the Police: Freedom of the Press, the Right to Privacy, and Civilian Recordings of Police Activity
By Marianne F. Kies
In recent years, the proliferation of miniature recording devices and free video-sharing websites has led to a dramatic increase in citizen journalism. The effect of this development is clearest in the context of civilian recordings of police activity, particularly in instances of police misconduct. To protect police privacy and safety, several states have responded by prosecuting civilian recorders under state wiretapping laws. However, states’ reliance on wiretapping laws in this context is misplaced. Because an on-duty police officer’s right to privacy is necessarily diminished, it should generally be outweighed by a civilian’s First Amendment right to freedom of the press—irrespective of whether the police officer being recorded is engaging in misconduct at the time.

To reconcile the countervailing constitutional rights and policy interests at stake, this Note proposes a legislative amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, also known as the federal wiretapping law. The Amendment provides that an on-duty police officer’s oral communications may be lawfully recorded unless the fact or method of recording creates or significantly exacerbates a substantial risk of imminent harm to the officer, other persons, or national security. The proposed amendment remedies the constitutionally defective status of state wiretapping laws by serving three equally important objectives: (1) protecting civilians’ First Amendment free press right to record police activity, (2) protecting police officers’ privacy and safety interests when the unique circumstances so demand, and (3) ensuring uniformity and resolving ambiguity among and within the states in this highly controversial area.
About This Content
Keywords: Kies, Omnibus Crime Control and Safe Streets Act of 1968, Police, Privacy, Wiretapping, First Amendment
Content Type: Note
Media Type: Print
Author: Marianne F. Kies
Publish Date: November 2011
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